1908595 (Refugee)

1908595 (Refugee) [2022] AATA 1494 (15 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1908595

COUNTRY OF REFERENCE: Afghanistan
MEMBER:Shahyar Roushan
DATE:15 March 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 15 March 2022 at 1:14pm
CATCHWORDS
REFUFEE – protection visa – Afghanistan – race – Hazara – religion – Shi’a – particular social group – returnee from the West – fear of killing – fear of kidnapping – Taliban takeover of the country – mass-casualty terrorist attacks – prospective security situation – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 57, 65, 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 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 27 March 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is [an age]-year-old national of Afghanistan. He is of Hazara ethnicity and a follower of Shi’a Islam.
On 24 June 2015, the applicant lodged a combined Partner visa (Subclass 309 &100) application, which was granted on 4 April 2016. He first arrived in Australia [in] May 2016 on a Partner visa (Class UF) (Temporary) (Subclass 309). On 24 March 2017, the relationship between the applicant and his partner broke down. [In] June 2017, he departed Australia to visit his family in Afghanistan and he returned to Australia [in] August 2017. On 15 November 2018, the applicant’s partner notified the department of the breakdown of the relationship.
On 25 December 2018, the applicant lodged an application for a Protection visa. He was represented by [Representative A] in connection with his application.
Claims and evidence
Protection visa application
According to his Protection visa application form, the applicant was born in Kabul. His parents, [and specified family members] reside in Afghanistan. He completed [school] in Afghanistan and for a number of years prior to his departure he worked as [an occupation 1], specialising in [a noted area]. He has continued to work in that profession since his arrival in Australia.
The applicant made the following claims in his Protection visa application.
He left Afghanistan in May 2016 to marry and live with his Australian citizen wife. His marriage subsequently broke down. He travelled back to Afghanistan in June 2017 where he remained for a period of approximately six weeks. Although he had left the matrimonial home shortly before his visit to Afghanistan, he returned to Australia believing he may be able to reconcile with his wife.
He fears being persecuted by the Taliban, ISIS and other terrorist groups due to his ethnicity, religion and having resided in Australia for a number of years. The situation in Afghanistan, particularly in Kabul has worsened and continues to deteriorate since he applied for his partner visa in 2015. Terrorist groups are regularly carrying attacks on Hazaras and Shi’as in Kabul. The Taliban are making significant advances, taking over rural areas of Afghanistan, including large parts of Ghazni Province. The US forces will withdraw from Afghanistan imminently and the Taliban will take control of Kabul and the rest of Afghanistan.
The Taliban will accept nothing less than the subjugation of the Hazaras as was the case in the period between 1997 and 2001. He is at risk of being killed, kidnapped or otherwise seriously harmed by the Taliban or other terrorist groups. Hazara Shi’as are at risk of being effectively ‘imprisoned in ghettos’ and being unable to leave those areas to access essential services such as healthcare. Shi’a places of worship may also be destroyed or shut down.
The government is unable to protect Hazaras and Shi’as currently and he cannot relocate as there are no safe places to relocate to, demonstrated by attacks on Hazaras in Jaghori and Kabul.
Supporting documents
[Representative A] made a written submission dated 11 February 2019 to the Department in support of the applicant’s Protection visa application. In relation to the applicant’s claims, [Representative A] submitted that, if the applicant were to return to Afghanistan, he would likely remain in Kabul. The applicant’s father’s ancestral village is located in [District 1], consisting of a mixture of Hazara and Pashtun villages. The Taliban has had a long presence in the district and travel through the district is dangerous for Hazaras. He stated that there have been increasing attacks on several major provincial cities in the past two years and the Taliban’s areas of control is gradually expanding. The Hazara districts of Jaghori and Malestan in Ghazni Province were recently attacked by the Taliban. There are imminent and serious risks faced by Hazaras and Shi’as in the near future as the Taliban take effective control of Afghanistan. The US has no interest in protecting Shi’a Hazaras, who are at risk of persecution if the Taliban were to take over Afghanistan.
The interview
The applicant attended an interview with a delegate of the Minister on 12 February 2019. The interview was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant’s representative was also present at the interview. The applicant’s request for the father of his ex-spouse to be present at the interview as a support person was declined by the delegate. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.
Post interview submissions
On 18 February 2019, [Representative A] submitted three untranslated documents to the Department. In a covering submission, he explained that the documents are prescriptions for medication issued to the applicant’s’ father for the purpose of treating a heart condition. This evidence was submitted in response to the Department’s request at the interview for evidence in support of the applicant’s claim that his visit to Afghanistan in June 2017 was prompted by his father having suffered a heart attack.
On 25 February 2019, the Department wrote to the applicant pursuant to s 57 of the Act, inviting him to provide comments in relation to the delegate’s concerns regarding the applicant’s claims to be of Hazara ethnicity and a follower of the Shi’a faith.
On 25 March 2019, [Representative A] responded to the Department’s invitation, stating that the applicant maintains that he is of Hazara ethnicity and Shi’a faith and that he is equally fluent in both Dari and the Hazaragi dialects. [Representative A] also submitted a supporting statement by [Leader A], an Afghan community leader in [Australia].
In his detailed statement, [Leader A] stated that, on the basis of his wide experience of being closely involved with the Hazara community both when he lived in Kabul and for many years in Australia, as well as a meeting with the applicant following the interview, he had ‘no doubt’ that the applicant is of Hazara ethnicity. [Leader A] also concluded that the applicant is ‘clearly’ a Shi’a Muslim.
The delegate’s decision
On 27 March 2019, the delegate refused the applicant’s Protection visa application. The delegate accepted that the applicant is a Hazara and a Shi’a Muslim. However, she expressed concern that the applicant may be largely motivated by economic factors and a general desire to remain in Australia, rather than fear of harm in Afghanistan. The delegate did not accept the applicant’s claims that he would be targeted or that he fears being harmed in Afghanistan for any reason. Based on the available country information at that time, the delegate was not satisfied that the applicant has a well-founded fear of persecution in Afghanistan for reasons of his race, religion or membership of the particular social group of ‘failed asylum seekers from a Western country.’ The delegate was also not satisfied that there is real risk that the applicant will face significant harm if he was removed from Australia.
The review application
On 8 April 2019, the applicant applied for a review of the delegate’s decision.
Having carefully considered the evidence before it, the Tribunal decided that there was sufficient material available to enable it to decide the review in the applicant’s favour without a hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
As already noted, whilst the delegate accepted that the applicant is a Shi’a Hazara, on the basis of the information available to her at that time, she was not satisfied that the applicant faces a real chance or a real risk of serious or significant harm in Afghanistan for any reason, including his race and religion. However, since the delegate’s decision to refuse the application, drastic changes have occurred in Afghanistan. In particular, the political order, the security landscape and the human rights situation have been significantly impacted following the Taliban takeover of the country in August 2021.
In early September 2021, the Taliban announced the formation of an ‘interim government’, declared once again an ‘Islamic Emirate of Afghanistan’ and appointed ‘mostly Pashtun and chiefly long-serving Taliban commanders’ to key government positions.[1] According to DFAT, the Taliban, who had previously presided over a period of considerable hardship for ethnic and religious minorities, promised an ‘inclusive’ government that would be representative of Afghanistan’s ethnicities and claimed to have fulfilled this by appointing a handful of Uzbeks, Tajiks and ‘a single Hazara’ to mostly technical roles.[2]
[1] DFAT, Thematic Report on Political and Security Developments in Afghanistan (August 2021 to January 2022, January 2022) January 2022.
[2] Ibid.
The Taliban is divided into factions of moderates and hardliners with different aims and expectations of governance. The factional nature of the Taliban, with different sub-groups within the organisation are competing for influence and control. The group also appears to be struggling to regulate the actions of tens of thousands of foot soldiers, which means that ‘behaviour on the ground, including violence towards at-risk groups, may be inconsistent with proclamations from the central Taliban authorities, or may reflect local grievances.’[3]
[3] Ibid.
DFAT has assessed that whilst Afghanistan’s security situation remains volatile, the country as a whole is relatively ‘less dangerous’ due to the cessation of most armed conflict after the Taliban takeover in August 2021. Nevertheless, DFAT has also noted that Afghanistan ‘remains a dangerous country with ongoing threats of terrorism and kidnapping and other forms of violence.’[4]
[4] Ibid.
The European Asylum Seekers Office (EASO) has likewise confirmed that the situation in Afghanistan remains volatile, rendering any conclusive assessment of international protection needs particularly difficult.[5] In its November 2021 Country Guidance, EASO highlighted the following elements:
·Due to the short time since the Taliban takeover, information is in general limited and/or conflicting. Limitations with regard to reliable reporting should also be taken into account, as under-reporting from Afghanistan or certain parts of the country is likely.
·While the future behaviour of the Taliban lacks certain predictability, profiles targeted by the Taliban may be at an increased risk, taking into account this actor’s increased capabilities and territorial control.
·While the frequency of security incidents and the number of civilian casualties have generally decreased since the Taliban takeover, the future risk of indiscriminate violence in any part of the country should be assessed with caution and based on the most recent information concerning the dynamics in the particular area as well as the country as a whole.[6]
[5] EASO, Country Guidance: Afghanistan Common analysis and guidance note, November 2021,
[6] Ibid.
More recently, the United Nations High Commissioner for Human Rights observed that despite a significant decline in armed hostilities in Afghanistan with a drastic reduction in civilian casualties, ‘the full range of civil, political, economic, social and cultural rights of the people of Afghanistan has regressed.’[7] Similarly, in February 2022, the UK Home Office reported that the Taliban generally maintains control of all areas of the country and that ‘the levels of indiscriminate violence arising out of conflict have significantly diminished in all areas of the country.’[8] The same report, however, also referred to a briefing to the UN Security Council on 26 January 2022 by the Secretary-General’s Special Representative for Afghanistan, Ms Deborah Lyons, stating: ‘Since my previous briefing it appears that the de facto authorities have attempted to constrain the Islamic State’s ability to carry out major attacks, and yet small-scale attacks are still being carried out, particularly against religious minorities.’[9]
[7] United Nations High Commissioner for Human Rights, Situation of human rights in Afghanistan: Report of the United Nations High Commissioner for Human Rights (A/HRC/49/24), UNHCHR, 4 March 2022.
[8] UK Home Office, Country Policy and Information Note - Afghanistan: Security situation, February 2022, AFG CPIN Security situation (publishing.service.gov.uk)
[9] Ibid.
The sources consulted by the Tribunal suggest that the Islamic State in Khorasan Province (ISKP) is a significant contributor to the volatility and incidents of violence in Afghanistan. ISKP is the Afghanistan offshoot of Daesh and is strongly opposed to Shi’a Muslims and the West. The group has been responsible for multiple mass-casualty terrorist attacks since August 2021. According to DFAT,
ISKP carried out dozens of terrorist attacks in 2020 and 2021 against the erstwhile Afghan national government and also the Taliban. Terrorist attacks remain possible anywhere in the country, but major attacks are most likely in key cities given the increased profile ISKP gets from such attacks...
ISKP grew in strength in 2021, including through recruitment of disaffected Taliban members, as well as fighters released from prisons…ISKP has claimed responsibility for the bombing at Kabul’s Hamid Kharzai airport on 26 August 2021; the suicide bomb attack on a Shi’a mosque in Kunduz province on 8 October 2021, which killed more than 70 people, chiefly Hazaras; and another suicide bombing of a Shi’a mosque in Kandahar province, the Taliban’s ‘home’ province, which killed 63 people on 15 October 2021, as well as the hospital bombing in Kabul on 2 November 2021 which killed 25. ISKP has also reportedly been responsible for dozens of smaller attacks since August 2021.[10]
[10] DFAT, n1, above.
There are credible reports of continued high levels of sectarian-motivated violence against the Shi’a Muslims, most of whom also belong to the Hazara ethnic group. EASO has reported that attacks by insurgent groups have mainly been attributed to ISKP, who consider Hazara/Shi’a as heretical and legitimate targets. The ISKP also targets the Hazara due to their perceived closeness and support for Iran and the fight against the Islamic State in Syria. Attacks on the Hazara/Shi’a minority population have targeted places of gathering, such as mosques, religious commemorations, weddings and other sites, including hospitals in Hazara-dominated neighbourhoods in large cities, including Kabul and Herat, where the Shi’a community has been disproportionately represented among civilian casualties.[11]
[11] EASO, n5, above.
Similarly, the UK Home Office has reported an increase in attacks by ISKP targeting civilians, particularly Shi’a Hazaras, since the Taliban takeover. These attacks appear to have occurred mostly in northern and southern provinces as well as in Kabul City.[12]
[12] UK Home Office, n8, above.
There are also reports of Hazara civilians being abducted or killed while travelling along the roads by other armed groups such as the Taliban. However, other reasons for targeting these individuals may also be identified, such as non-political communal disputes or the individual being a member of Afghan National Security Forces or having a job in the government or the NGO sector.[13]
[13] Ibid.

In its most recent Thematic Report in relation to Afghanistan, DFAT referred to statements by the Taliban, ‘indicating possible support’ for the Hazara victims of ISKP violence. However, the Report also stated:
While the Taliban may be attempting to disrupt ISKP and prevent its attacks on Hazaras, this, along with the Taliban’s professed amnesty, does not indicate that it has put aside its historical antipathy towards Hazaras. Since its takeover in August 2021, the Taliban has summarily executed Hazaras who were former members of the security forces... Furthermore, hundreds of Hazara families have been forcibly evicted from their homes in central Afghanistan. The Taliban claims these evictions are ‘property disputes,’ but NGOs have described them as a form of ethnic cleansing (although one source suggests these evictions may be the result of local score-settling, rather than ethnically-based).[14]
[14] DFAT, n1, above.
DFAT has assessed that Hazaras in Afghanistan face a high risk of harassment and violence from both the Taliban and ISKP, on the basis of their ethnicity and sectarian affiliation. DFAT has also assessed that Shi’as face a high risk of being targeted by ISKP and other militant groups on the basis of their religious affiliation when assembling in large and identifiable groups, and that this risk increases for those living in Shi’a majority or ethnic Hazara neighbourhoods in major cities such as Kabul and Herat.[15]
[15] Ibid.
On the basis of the persuasive evidence submitted to the Department and accepted by the delegate, the Tribunal accepts that the applicant is a national of Afghanistan. The Tribunal accepts that he is a Hazara and a Shi’a. The Tribunal further accepts that the applicant will continue to identify and associate with the Hazara Shi'a community should he return to Afghanistan. The Tribunal accepts that the applicant resided in Kabul before he came to Australia, that members of his immediate family continue to reside in Kabul and that he would seek to reside in Kabul should he return to Afghanistan.
Having carefully considered the evidence before it, including the country information set out above, the Tribunal finds that, if the applicant were to return to Kabul, there is a real chance that he will face threats to his life or liberty, significant physical harassment and/or significant physical ill-treatment. The Tribunal is satisfied that such treatment amounts to persecution. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are his race and religion. The Tribunal finds that the applicant’s real chance of persecution relates to all areas of Afghanistan.
For the reasons given above, the Tribunal finds that the applicant has a well-founded fear of persecution in Afghanistan as defined by s.5J of the Act. The Tribunal finds that the applicant is a refugee under s.5H(1)(a) of the Act.
The Tribunal, therefore, is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the decision under review for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Shahyar Roushan
Senior Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 1494

15 March 2022

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