1906390 (Refugee)

1906390 (Refugee) [2022] AATA 2392 (18 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1906390
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Lilly Mojsin
DATE:18 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that applicant satisfies s 36(2)(a)

Statement made on 18 May 2022 at 8.30 am
CATCHWORDS
REFUGEE – Protection visa – Venezuela – decision made on paper – political opinion – opposition to government – no Homeland Card – opposition members denied card – unable to access subsidised food and medicine – membership with Primero Justicia – name on Tascon List – position of Health and Safety at workplace – applicant was attacked – threats to returnees due to pandemic – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 360(2)(a), 499
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 the delegate of the Minister for Home Affairs on 21 February 2019 to refuse to grant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).,
The applicant, who claims to be a citizen of Venezuela, arrived in Australia [in] June 2017 and applied for the visa on 23 August 2017. The applicant’s wife and son also applied for PVs.[1]
[1] AAT 1836984, 1901768
The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm on return to Venezuela.
The applicant appealed the decisions to the Tribunal on 18 March 2019, annexing a copy of the Department decision to the review application.
The applicant was represented in relation to the review.
In reaching its decision the Tribunal did not find it necessary to invite the applicant to a hearing, as it was able to decide the review in the applicant's favour on the basis of the material before it: s.360(2)(a) of the Act.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In his PV application, the applicant claimed as follows:
·He was visiting his son, applicant, in Australia when his colleagues told him his company was closing down due to the critical political and economic situation in Venezuela.
·He decided to stay with his son in Australia until the expiry date of his then visa.
·Some countries consider Venezuela to be under a dictatorship like Russia or Cuba. They will persecute people who oppose the ‘regime’ presided by Nicolas Maduro.
·The government has a long list of boys killed including government opposition.
·He fears that he would be shot dead because he disagrees with the Maduro government.
·He claims that he can find work in construction in Sydney given the current boom. He could work in cleaning or painting or mechanics.
·He could also help his family economically if he works in Sydney.
·He claims that he has experienced harm from ‘colectivos’ in Caracas streets and in his neighbourhood.
·He does not have Carnet de la Patria (Homeland Card) as members of the opposition are denied the card. Consequently, he would be unable to access subsidised food, medicine etc.
·He will be persecuted by the government if he were to return to Venezuela on account of his political opinion and lack of access to the homeland card.
·His work’s union is pro-government and he is known to oppose their ideas and they have threatened him.
The delegate found that the applicant did not have a Homeland card in Venezuela prior to his coming to Australia and that he feared the Colectivos in Venezuela if he were to return there. He did not accept that the applicant had any political profile or that he would suffer serious or significant harm on his return to Venezuela.
The applicant’s representative made a submission to the Tribunal, on the applicant’s behalf, regarding the applicant’s stated claims. The representative submitted to the Tribunal:
·that the applicant’s declaration explains the reasons why the applicant fears a return to Venezuela could be dangerous, as he has already been a victim of attack ([deleted]). He has been a member of an opposition party. His partner (applicant 2) has been subject to harassment after being fired and publicly named, and both applicant 2 and the applicant are named on the Tascon List. Union members who attacked him (who are generally members of Colectivos and are close to the government) are violent individuals. The person who directly attacked him was later assassinated in an unrelated crime. The brother of applicant 2[was] recently attacked (shot) in his neighbourhood, for what they believe is his support for the opposition.
·that the applicant membership with Primero Justicia shows that he has been an active participant in politics Venezuela. He has actively participated in a political party which has been vocally opposed to the Chavez and Maduro regimes.
·that the appointment of the applicant to the position of Health and Safety at [Company 1], confirms what he has stated in his statement and his position within the company and why he was called to interact with other workers and company management to improve health and safety rules and condition for workers at [Company 1].
·firefighters reported the attack on the applicant.
·an x-ray of the injury suffered when he was attacked at [Company 1].
·a medical report on attack on the applicant.
·a witness report.
·supporting letters from [three named persons].
·police report placed after the attack on the applicant.
·newspaper article [about] the person who attacked the applicant, [name deleted], who was found beheaded in an unrelated crime.
·photos of the applicant participating in rallies in Venezuela and Australia in support of Democracy.
In support of the applicant’s application, the applicant’s representative provided the following country information to the Tribunal on 19 April 2022,
i.An article from ‘World Education Services’ describing the current situation faced by students in Venezuela.[2]
[2] World Education Services, ‘Venezuela in Crisis: What does it mean for northbound student mobility’, 15 November 2018 Venezuela in Crisis: What Does It Mean for Northbound Student Mobility? (wes.org)
ii.Articles from ‘AP News’[3] and ‘Reuters’[4] exploring reports of professors and students fleeing Venezuela.
[3] AP News, ‘Professors flee, higher education suffers in Venezuela’, 11 June 2015 Professors flee, higher education suffers in Venezuela | AP News
[4] Reuters, ‘As campus crumbles and students flee, Venezuela’s main university struggles to survive COVID-19’, 8 October 2020.
iii.An article from BBC News describing a student protest which descended into violence;[5] a Wikipedia page for Bassil Da Costa explores the incident further; and a El Pais article explaining that the average victim of protest violence in Venezuela is a student.[6]
iv.Articles from ‘huckmag’[7] and ‘Orlando Sentinel’,[8] describing the La Resistencia group which the applicant belonged.
v.Articles from ‘World Vision’[9], the ‘BBC’,[10] and ‘Human Rights Watch’,[11] detailing Venezuela’s recent history and current situation.
vi.Reference to ‘smartravellor.gov.au’, which as of 19 April 2022, informs Australian citizens not to travel to Venezuela.[12]
vii.Articles from ‘SBS Spanish’,[13] the ‘Sydney Morning Herald’,[14] and ‘The News Daily’,[15] describing Australia’s intention to place migrations from South America at a higher priority level due to the situation in Venezuela.
viii.An article from World Vision detailing Venezuela’s recent history and current situation.[16]
ix.Reference to ‘smartravellor.gov.au’, which as of 19 April 2022, informs Australian citizens not to travel to Venezuela.[17]
x.Articles from ‘SBS Spanish’,[18] the ‘Sydney Morning Herald’,[19] and ‘The News Daily’,[20] describing Australia’s intention to place migrations from South America at a higher priority level due to the situation in Venezuela.
xi.Articles from ‘World News Platform’[21] and Culturico’,[22] describing the introduction of ‘peace zones’ into Caracas and other areas impacted by gangs and their undesired outcome.
xii.An article from ‘France 24’, and ‘erodigital.com’[23] indicating Russian support for the Colectivos.
[5] BBC News, ‘Venezuela student protest ends in deadly violence’, 13 February 2014.
[6] El Pais, ‘The average victim of protest violence in Venezuela: a student on the frontlines’, 2 August 2017.
[7] Huckmag, ‘Inside the resistance: The young activists fighting for Venezuela’s future’.
[8] Orlando Sentinel, ‘A better Venezuela is coming – learning from “La Resistencia”’, 26 July 2017.
[9] World Vision, ‘Venezuela crisis: Facts, FAQs, and how to help’, 2022.
[10] BBC, ‘Venezuela crisis: how the political situation escalated’, 12 August 2021.
[11] Human Rights Watch, ‘Venezuela: Events of 2021’.
[12]
[13] SBS Spanish ‘Australia poised to receive Latin American refugees as part of humanitarian intake’, 22 April 2020.
[14] Sydney Morning Herald, ‘Australia shifts on refugees to act on latest humanitarian crisis’, 19 June 2019.
[15] The News Daily, ‘Venezuela refugees heading for Australia amid humanitarian crisis’, 19 June 2019.
[16] World Vision, ‘Venezuela crisis: Facts, FAQs, and how to help’, 2022.
[17]
[18] SBS Spanish ‘Australia poised to receive Latin American refugees as part of humanitarian intake’, 22 April 2020.
[19] Sydney Morning Herald, ‘Australia shifts on refugees to act on latest humanitarian crisis’, 19 June 2019.
[20] The News Daily, ‘Venezuela refugees heading for Australia amid humanitarian crisis’, 19 June 2019.
[21] World News Platform, ‘Why did Venezuela’s peace zones backfire so badly?’, 27 January 2022.
[22] Culturico, ‘Caracas “Peace Zone”’, 10 September 2021.
[23] Erodigital.com, ‘Colectivos pintan mural en Catia como’, 5 April 2022.
REASONS AND FINDINGS
On the basis of the applicant’s Venezuelan passport, I accept that the applicant is a national of Venezuela and not a national or citizen of any other country. I accept that applicant does not have a right to enter and reside in any country other than Venezuela. Therefore, I find that the applicant is not excluded from Australia's protection by s.36(3) of the Act. I also find that Venezuela is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
According to US State Department Report on Human Rights Practices Venezuela 2022
While Venezuela is legally a multiparty, constitutional republic, the authoritarian regime led by Nicolas Maduro usurped control over all branches of government: executive, judicial, legislative, the offices of the prosecutor general and ombudsman, and the electoral institutions. In December 2020 the Maduro regime organized parliamentary elections that were rigged in favor of the regime, and approximately 60 countries and international bodies publicly declared the elections were neither free nor fair.
Civilian authorities’ control over the security forces continued to decline and was deeply politicized. Increasingly unpopular with citizens, the Maduro regime depended on civilian and military intelligence services, and to a lesser extent, progovernment armed gangs known as colectivos, to neutralize political opposition and subdue the population.
There were numerous reports that the Maduro regime committed arbitrary or unlawful killings. Although the regime did not release statistics on extrajudicial killings, nongovernmental organizations (NGOs) reported that national, state, and municipal police entities, as well as the armed forces and regime-supported colectivos, carried out hundreds of such killings during the year.
UN Independent Fact-Finding Mission (FFM) on Venezuela report stated “real and perceived opponents or critics” of the Maduro regime increasingly included individuals and organizations that documented, denounced, or attempted to address human rights or social and economic problems in the country. The FFM concluded that it had reasonable grounds to believe the justice system had played a significant role in the state’s repression of government opponents.
Widely circulated social media posts documented army soldiers threatening civilians, looting their homes, and destroying property. More than 5,000 Venezuelans and Colombian refugees fled across the border to Colombia amid widespread panic and distrust.
I accept that there are food and medical shortages being reported across Venezuela. According to International Crisis Group, Venezuela is in the midst of a tense political standoff and socio-economic meltdown, with hyperinflation, violent crime, political repression and food shortages pushing nearly six million citizens to flee the country. The Venezuelan economy has shrunk by around four fifths since President Maduro took office in 2013, provoking a mass exodus of around one in five Venezuelans. A combination of corruption, mismanagement and economic collapse has wrecked the country’s infrastructure, leading to frequent large-scale blackouts, chronic energy and water supply problems, a breakdown of public and private transport, and a critical lack of medical services. An annual survey by major universities estimates the poverty level at 94 per cent.
In January 2017[24], the government of Venezuela launched the Carnet de la Patria [Homeland Card], a "tool" to "broaden the policies to protect the people, increase efficiency and efficacy, and increase the deployment capacity of the national government". The Ministry of People's Power for Communications and Information indicates that the Homeland Card is a "'means for social justice and inclusion that connects the people directly with their President; without red tape, bureaucracy, intermediaries and corruption'" and is an identity document for the delivery of social programs by the government through its "missions". According to Transparency International, some of the questions that are asked when applying for the Homeland Card include monthly income and whether the person has: social media accounts, benefited from "missions" and which ones, registration in the "Great Housing Mission," membership in a social movement, membership in a political party, membership in other organizations, membership or representation in a community council, membership in the CLAP [Comités Locales de Abastecimiento y Produ], a complete set of teeth, and whether they receive CLAP boxes. Homeland Card stores information about the socio-economic status of the person, as well as the benefits he or she receives and their place of residence. Sources indicate that the homeland card is required in order to access CLAP services.
[24]
Transparency International indicates that it is needed to access various government benefits and to access medicines, food, health care, and to be appointed to government jobs, register at public universities, withdraw money from public banks, and obtain services at notaries. The homeland card is also required in order to obtain identity documents such as passports. This information, obtained from refworld, also quotes Tulio Ramírez, a sociologist based in Venezuela, as indicating that the homeland card is a "mechanism of social control" and that many people obtain the homeland card on "a voluntary basis in order to survive". Similarly, El País, a Spain-based newspaper, quotes María Gabriela Ponce, a sociologist based in Venezuela, as indicating that the homeland card is a "tool of control" and that "'Venezuelans view the [homeland card] as something that will allow them to receive what the government is distributing, and it is not necessarily related to a citizen's political affinities'". Infobae reports that the homeland card is, for some, a way to secure food in light of hyperinflation in Venezuela and the low income of its inhabitants.
During the 2017 Venezuelan regional elections, the 2017 Venezuelan municipal elections and the 2018 Venezuelan Presidential election, there were complaints of the use of the Homeland Card as a method of coercion over the voter. Reports of vote buying were also prevalent during presidential campaigning. Venezuelans suffering from hunger were pressured to vote for Maduro, with the government bribing potential supporters with food. Maduro promised rewards for citizens who scanned their Carnet de la Patria at the voting booth, which would allow the government to monitor the political party of their citizens and whether or not they had voted.
Report US Department of State Human Rights Practices Venezuela 2017 stated that many ‘“carnet de la patria” (Homeland Card)’ applicants reported having to provide proof of PSUV (Maduro’s political party) affiliation during the registration process.
According to Human Rights Watch[25], Venezuela is facing a severe humanitarian emergency, with millions unable to access basic healthcare and adequate nutrition. Limited access to safe water in homes and healthcare centers and a vaccination plan marred by opacity may have contributed to the spread of Covid-19.
[25]
During several crackdowns since 2014, security forces and pro-government armed groups known as colectivos have attacked demonstrations. Security forces have severely injured and occasionally killed demonstrators they had deliberately shot at point-blank range with riot-control munitions, brutally beaten others who offered no resistance, and staged violent raids on apartment buildings.
Of concern is a report by Organisation of American States[26] that states many of the returned Venezuelans were stigmatized and criminalized by the illegitimate regime of Venezuela, and suffered cruel and degrading treatment upon their return, as evidenced by the report on the "Situation of the Venezuelans who have returned and seek to return to their country in the context of the COVID-19".[27] According to WorldVision,[28] Venezuelan migrants who returned to the country after losing their jobs abroad in the wake of the pandemic have been unable to earn wages back home. Shortages of fuel, electricity, and clean water have sparked riots and left many migrants with no choice but to flee again.
[26]
[27]
[28] >
As of 2021, Venezuela is facing a severe humanitarian emergency, with millions unable to access basic healthcare, adequate nutrition or safe water in homes. An estimated 5.5 million of a total population of 32 million citizens have reportedly fled Venezuela since 2014, motivated by political, economic, human rights and humanitarian causes. In September 2020, a fact-finding mission found high level authorities to be responsible for atrocities that were described as amounting to crimes against humanity. The Maduro government has been responsible for extrajudicial executions, forced disappearances, the jailing of opponents, torturing of detainees and a crackdown on protestors. Human Rights Watch reports that persistent concerns include brutal policing practices, poor prison conditions, impunity for human rights violations, lack of judicial independence, and harassment of human rights defenders and independent media.

The COVID-19 pandemic has added to the humanitarian crisis facing Venezuela with a collapse of the health care system and an inability to treat the number of patients presenting to hospital. The government has used the COVID-19 state of emergency to repress dissent, arbitrarily detain and prosecute political opponents, including legislators, journalists, healthcare workers critical of the government's handling of the pandemic and lawyers providing support to demonstrators.
Returnees to Venezuela have been repeatedly stigmatized by the government, being accused of bringing COVID-19 to Venezuela. The Maduro government has accused returning Venezuelans of being 'bioterrorists' and as of June 2020, announced that only 400 Venezuelans could return per day, with those caught crossing at informal points being sentenced up to 10 years in prison.
I accept the independent evidence, cited above, that returnees are subject to abuse upon arrival back in Venezuela. Authorities and pro-government armed colectivos have threatened, verbally harassed and mistreated returnees. Further, the applicant faces harm as a returnee to Venezuela, due to inadequate food and water or medical care, and physical and verbal mistreatment by authorities and colectivos.
I find that the applicant would face threats to liberty, significant physical ill treatment and a denial of access to basic services that would threaten his capacity to subsist as a returnee to Venezuela. I find that the harm feared is systematic and is discriminatory towards those attempting to re-enter Venezuela during the COVID-19 pandemic.
I am satisfied that the harm feared by the applicant amounts to serious harm as described in s.5J(5) and that the essential and significant reasons for the harm feared is membership of the particular social group of ‘returnees to Venezuela’. I am satisfied that the risk of serious harm exists across all of Venezuela.
The Venezuelan government has been accused of being complicit in acts amounting to crimes against humanity. It is documented to have cracked down on protestors and tortured detainees. Therefore, I also find that the harm the applicant fears is from government authorities and paramilitary forces, colectivos, operating on behalf of the current government
Persistent concerns have been raised about the lack judicial independence within the legal system. In light of the above information, I find that there is no effective state protection available to the applicant from the harm feared.
I am satisfied that the applicant has a well-founded fear of persecution for reasons of his being a returnee to Venezuela and that he is therefore a person in respect of whom Australia has protection obligations under s.36(2)(a).
Accordingly, I find that the applicant satisfies the requirements of s.36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 2392

18 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Remedies

Standing