1914289 (Refugee)

1914289 (Refugee) [2023] AATA 2074 (11 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1914289

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Tania Flood
DATE:11 April 2023
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 11 April 2023 at 2:34pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh Nationalist Party supporter – religion – atheist – uncovering illegal gambling activities – political activities in Australia – fear of killing – criminal convictions in Australia – alleged blasphemy – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 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 10 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia on a Student visa [in] September 2004. His visa ceased [in] March 2007 and he remained in Australia unlawfully. [In] April 2016 he was convicted of a criminal offence and sentenced to supervised and unsupervised bonds. [In] March 2018 he was arrested and held in criminal custody. On 10 April 2018 he lodged an application for a Protection visa. [In] October 2018 he was convicted of several charges and ordered to pay fines and compensation and sentenced to a Community Correction Order for a period of 18 months.
On 10 May 2019 the delegate refused to grant the visa on the basis that there is not a real chance or a real risk the applicant will suffer serious or significant harm on return to Bangladesh for the reasons claimed.
The applicant appeared before the Tribunal on 11 January and 17 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from a work colleague of the applicant.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Bangladesh for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of claims
According to information contained in his application for a Protection via, the applicant is [an age]-year-old citizen of Bangladesh. He was born in [his hometown in] Dhaka in Bangladesh. The applicant’s [mother], [father], [and named family members] all live in Bangladesh. He stated he was in contact with his family members by telephone on a fortnightly basis.
The applicant studied at [a named college in] Dhaka [between specified years]. Thereafter, he attended [another college] and studied for a [Qualification 1] [between specified years]. He indicated he resided at [an address] in India from January 1996 until December 1999. From December 1999 until September 2004, he lived at [specified addresses in] Dhaka in Bangladesh.
The applicant made the following claims on his visa application form:
He states that he left Bangladesh in 2004 to study in Australia. He stated he did not experience harm in Bangladesh.
He states that he is an active member of the Bangladesh Nationalist Party (BNP) and members of his party are facing persecution countrywide in Bangladesh.
He suggests that if he returns to Bangladesh, he will be harmed and mistreated by the Awami League (AL) because of his political position. He does not think the authorities would protect him as he is a member of the Bangladesh Nationalist Party. Relocation to a different part of the country is not an option.
The applicant refers to a ‘personal statement’ which contains more information; however, it does not appear that such a statement was provided to the Department prior the delegate’s decision being made.
The applicant subsequently submitted a revised application form noting various errors including dates, information regarding criminal convictions and a period of imprisonment in Australia and visa non-compliance.
Protection visa interview
The applicant was invited to a protection visa interview to be held on 22 January 2019. This was postponed as the applicant reported feeling unwell, and the interview took place on 25 January 2019.
The decision of the delegate, which is before the Tribunal for the purpose of the review indicates that the applicant provided the following testimony in his protection visa interview.
He joined the BNP in 1995. All his family were BNP supporters and his father was active in the party. His father was threatened but was never harmed because he was old. His father passed away in 2002.
He was involved in demonstrations and community events until the AL came to power in 1996. Fearing he would get into trouble his parents sent him to India to study and he remained there for 3 years, returning periodically to visit his family.
He returned to Bangladesh in 1999 and continued his BNP involvement. He attended blood donation drives and demonstrations. He was chased at the end of 1999 and in 2000 he was attacked by 7-8 men although with the help of his cousin he managed to push back the attackers and flee.
He played a significant part in the demise of many of the AL’s local illegal businesses such as gambling dens.
He joined the BNP in Australia soon after his arrival but his level of participation was low as he was busy with his studies. Later he attended seminars and went to demonstrations.
He is no longer a Muslim and he will be ostracised for this reason and might even be killed. His mother was initially unhappy with his decision but has accepted his [lack of faith]. His [siblings] are not happy but have not expressed any animosity or ill-will towards him.
Documents submitted to the Department
In support of his Protection visa application the applicant provided 3 photos to the Department, purporting to show him attending a demonstration in Australia against the government in Bangladesh.
Documents submitted to the Tribunal
The applicant has provided in support of his review application:
a.A letter from the applicant to the Tribunal dated 4 January 2023 attesting to his difficult circumstances in Australia. In this letter he states he is an atheist and that he is not accepted by his family and his community here and overseas.
b.A support letter from [Agency 1] dated 30 December 2022.
c.Various medical reports which indicate he has physical and psychological conditions.
d.Various other letters directed at different agencies regarding his difficult personal circumstances in Australia.
Tribunal hearing
The applicant appeared before the Tribunal on 11 January 2023 but the hearing was adjourned at the applicant’s request to enable him extra time to seek legal counsel. He appeared again before the Tribunal on 17 March 2023 but was again unrepresented. The applicant raised no objection to proceeding unrepresented and the hearing proceeded on that occasion.
During the hearing there were discussions about the applicant’s past and present political opinions and his claimed atheism.
On the topic of his claimed support for the BNP the applicant stated that he had some problems the past in Bangladesh on account of his political opinions and he said he may be killed on return. The applicant explained that his family are divided along political lines. Whereas he and his parents are supporters of the BNP, his cousins are all AL supporters and they are influential members of the AL student wing. He said that he and his father were not members of the BNP; they were only supporters. He said he attended programs organised by the BNP as well as community programs such as blood donations. He said his father was a businessman and supported the BNP financially.
The applicant spoke about uncovering the illegal operations of AL members in his area including exposing their illegal gambling activities. He said that he informed his BNP leaders of his discovery and with the help of authorities those illegal businesses were shut down, however later they started again. He said that the persons affected tried to exact revenge on him and did capture him once in about 1999 or 2000 and injured his hand but he managed to escape. He said that the people involved will remember him and if he were to restart his political involvement in support of the BNP he could be harmed.
The applicant further stated that he no longer believes in any religion and considers himself an atheist. He said that he lived in India for 3 years and was exposed to other religions. He said that after arriving in Australia he met a Hindu woman and they commenced a relationship. He said his family pressured him to convert his girlfriend from Hinduism to Islam and he did not agree with that and argued with them about their stance. He said he dismissed them harshly and they voiced similar sentiments. He said he also began reading different books and formed the opinion that terrorists had highjacked the religious discourse. He also questioned the authority of the Quran.
The applicant said the relationship with the Hindu woman ended some six years later. He said she fell pregnant and later terminated the pregnancy against his wishes. She went back to India and married another person without his knowledge.
The applicant stated that he had some past involvement with the BNP in Australia but no longer does. He mentioned attending a demonstration with other BNP leaders when Sheikh Hasina visited Australia in 2018. The Tribunal put it to the applicant that his low-level engagement with the BNP in Australia appears unlikely to bring him to the attention of the AL if he is required to return to Bangladesh. He argued that all BNP supporters from the grassroots upwards can be targeted and harmed by AL members and supporters.
The applicant stated that the BNP supporters he met with in Australia learnt at a certain point that he is an atheist. When he spoke out about his views on this topic, as he is want to do, it led to arguments and he was no longer welcomed by the BNP community. He said the BNP members in Australia observe prayers at meetings but he does not believe in that and so he stayed away from their gatherings.
When asked if his experience with the BNP in Australia has changed his views about the party he replied in the negative. The Tribunal put it to the applicant that one of the BNP’s guiding principles is belief in Allah and asked him why he would continue to support such a party given his religious views. He replied that despite the BNP wanting Bangladesh to be an Islamic state this has not prevented persons of different religions joining the party. Despite this he stated that BNP members are mostly Muslim and if they know he is atheist they will not accept him. The Tribunal put it to him that based on his testimony it might form the view that he will refrain from any further political engagement with the BNP if he returns to Bangladesh because he would likely encounter the same arguments he has had with BNP members here over religion. The applicant replied, “most likely”. He added that it is not that he would want to avoid further political involvement rather he would not be accepted because he is an atheist.
When questioned about his contact with his family in Bangladesh he said that he last spoke to his mother about 3 months ago. He said that she calls him on occasion and tries to convince him to return to his Islamic faith. He said he tries to avoid her calls for this reason. He said that all his family, including his mother, his siblings and other relatives, know that he is an atheist and they will never accept him for this reason and will continually force him to go back to Islam. He said that they believe he will go to hell and they also believe that killing a non-believer will take them to heaven. When asked if any of his family have actually threatened him with harm over this issue he said his brother-in-law probably would. He said they have made it clear that he should not go back to Bangladesh unless he changes his mind. He said he has received calls from various relatives and he has had to change his number to avoid this.
When asked who he discusses his religious views with he mentioned BNP members in Australia, his employer and work colleagues and his mental health counsellor. He said that he is by nature an outspoken person and he cannot stop himself from voicing his opinions. He said if he found himself in a situation where religion was being discussed he wouldn’t be able to stop himself from stating his atheist views. He stated that he does not want to live his life in hiding and wants to be free to express himself. He stated that if he returns to Bangladesh and speaks openly about his views he will be treated badly by the community and will not be accepted or welcomed by them. He said that radical Islamic people will likely attempt to kill him if they know his religious views.
The applicant stated that he has secured employment with [a Christian agency] and he was accompanied to the hearing by his work supervisor who informed the Tribunal that the applicant has spoken to him about his dislike of Islamic teachings in conversations they have had. He said he has tried to ascertain if the applicant believes in God and he understands he has a hard time accepting this.
FINDINGS AND REASONS
Country of nationality
The applicant provided a copy of a Bangladeshi passport to the Department which verifies his claimed identity and nationality. In the absence of any information to the contrary the Tribunal accepts the applicant is a national of Bangladesh. There is no information before the Tribunal to indicate that the applicant has the right to enter or reside in any country other than Bangladesh.
The applicant’s religious views

44. It is noted that the applicant’s claims in respect of his religious views were only introduced late in the proceedings at his protection visa interview. The evidence before the Tribunal indicates however that the applicant has had a troubled time for several years including the breakup of his relationship and the loss of an unborn child, periods of homelessness and running afoul of the law. The evidence supports that his mental health has deteriorated because of his difficult circumstances and that his access to treatment has been sporadic due to financial difficulties. In such circumstances, and as the applicant is unrepresented, the Tribunal has not drawn any adverse inference from the late introduction of this claim.
45. The Tribunal considers the applicant’s evidence in respect of his religious views to be credible. He delivered his evidence forthrightly and in a manner which did not suggest fabrication or exaggeration. His description of his experiences with the BNP in Australia was convincing and consistent with what could be expected given the guiding principles of that party. Further, the applicant’s claims are supported by the testimony of his work colleague whom the Tribunal also found to be credible. In this regard the Tribunal notes the work colleague was present at the hearing as a support person and only offered to testify at the Tribunal’s request when the applicant alluded to having spoken to him about his religious views. At that juncture the Tribunal intervened to obtain the testimony of the work colleague before the applicant could elaborate. The Tribunal is prepared to accept on the evidence before it that the applicant has genuinely turned away from the Islamic faith and considers himself an atheist.
Is there a real chance the applicant will suffer serious harm if he returns to Bangladesh because of his religious views and/or because he is an atheist?
46. According to the Department of Foreign Affairs and Trade (DFAT)[1] the Constitution of Bangladesh affirms Islam as the state religion but provides for religious equality and freedom. In practice, these laws are subject to constitutional provisions about public order and morality. There is no specific blasphemy law in Bangladesh but other laws are used to effectively prohibit blasphemy. The Penal Code includes provisions that prohibit deliberate insults to religion and offences can attract fines or prison sentences of up to two years. The Information and Communication Technology Act and the Digital Security Act similarly have provisions that prohibit the use of online platforms to insult religion. Under those laws a ten-year prison sentence is possible.

47. DFAT’s latest country information report goes on to state that atheism is uncommon and unpopular in Bangladesh. An atheist blogger, Avijit Roy, was killed in 2015 by members of the terrorist group Ansar al-Islam. His killers were sentenced to death in 2021 by an anti-terrorism tribunal. DFAT is not aware of more recent examples of harm coming to professed atheists. According to New Humanist, the journal of the United Kingdom based Rationalist Association, in 2017 after a 21-year-old blogger posted about dissatisfaction with Islam on Facebook, he received death threats, was expelled from his college and evicted from his home and fled to India. DFAT notes that religion, particularly Islam, is a central part of Bangladeshi culture and identity. Publicly professed atheism is very uncommon and could lead to violence, but DFAT is not aware of a pattern of incidents that can be analysed to assess risk. DFAT reports that a publicly professed atheist would probably face social discrimination and violence, especially if they attempted to convince others to adopt their beliefs. Accusations of atheism can be used as a weapon to foment violence; acts of blasphemy are sometimes confected and then blamed on innocent parties which may lead to mob violence or lynching.
48. According to Freedom House[2] violence and discrimination against religious minorities and refugees, particularly Rohingya, are significant problems. Although religious minorities have the right to worship freely, they occasionally face legal repercussions for proselytizing or alleged blasphemy. Members of minority groups face harassment and violence, including occasional mob violence against their houses of worship. Those with secular or nonconformist views can face societal opprobrium and attacks from hard-line Islamist groups.
49. The UK Home Office[3] reports that although a secular country, the government is sometimes seen as using religion to achieve political goals. Some who have expressed atheistic or secularist beliefs, particularly in relation to Islam, including online bloggers and activists have been arrested and detained on the grounds of religious defamation. The authorities sometimes use legal provisions, such as the Information and Communication Technology Act or Digital Security Act to harass, arrest, detain or prosecute persons who have published material that is deemed to be critical of the state, the constitution or the ruling party, and thus considered seditious or defamatory. It is also a criminal offence to publish material that is deemed to hurt religious sentiment or values or that may spread hatred or hostility that threatens public order, decency or morality. Several atheist bloggers left Bangladesh following a spate of violent attacks against them by Islamist militants between 2013 and 2016. One prominent blogger indicated his family in Bangladesh face police harassment on account of his absence and that he received threatening calls from the police about his continuing online activity. In February 2020, musician Rita Dewan criticised Islam and the role of Allah in a recorded performance which was uploaded to YouTube. Four separate cases were filed against her under the Digital Security Act and Bangladesh’s Penal Code. She was accused of insulting religion, creating outrage by insulting religious belief, provoking breach of peace and making statements conducing to public mischief. In another case she was accused of publishing and broadcasting information hurtful to religious values and sentiment. The UK Home office report goes on to state that atheists accused of blasphemy or religious defamation are likely to face legal sanction, including imprisonment. Atheists are likely to be subject to treatment or discrimination by the state that is sufficiently serious by its nature or repetition to amount to persecution or serious harm.
50. On societal treatment of atheists the UK Home Office states that the level of societal discrimination faced by a person who does not actively seek to publicly express their lack or rejection of religion is generally low. However, high profile atheist and secularist bloggers and activists, deemed to have defamed Islam, face a high risk of discrimination in the form of threats and physical violence by Islamic extremists. Those who openly express their atheist beliefs, including by blogging, are likely to be subject to treatment, including harassment and violence, that is sufficiently serious by its nature and/or repetition, or by an accumulation of various measures, to amount to persecution or serious harm.
51. On the topic of state protection, the UK Home Office states that in general, the state appears willing and able to offer effective protection to religious minorities. However, atheists and people accused of ‘hurting religious sentiment’ who are open about their beliefs are unlikely to be afforded effective protection.
52. The country information outlined above indicates that a person who publicly professes atheist views in Bangladesh could encounter societal discrimination, threats and physical violence by conservative Muslims and Islamic extremists and may even face legal sanctions including arrest and imprisonment on grounds of religious defamation.
53. The Tribunal does not consider the applicant to be a high-profile atheist or an online blogger or activist and nor does it consider he would assume such a profile if required to return to Bangladesh. However, his oral testimony during the hearing persuades the Tribunal that he does not, and would not, shy away from publicly professing his nonconformist, atheist views in family and social settings where discussions about religion may arise. Based on his oral evidence, which the Tribunal found to be credible, he has done so in inappropriate circumstances in Australia, including in the company of Muslim BNP supporters, and the Tribunal considers it likely he would behave similarly in Bangladesh. Letters from his consultant psychiatrist dated 19 July and 6 December 2022, and further health records provided in submissions, indicate the applicant has been receiving treatment, including prescribed medication for anxiety and depression due to severe and enduring psychosocial stresses and note his condition has been difficult to stabilise due to multiple ongoing stresses. The Tribunal considers the applicant’s unstable mental health could further increase the likelihood of him voicing his unpopular religious opinions in circumstances where it would be unwise and unsafe to do so.
54. In the applicant’s case, the Tribunal is satisfied that there is a real chance he will suffer serious harm if he returns to Bangladesh now or in the reasonably foreseeable future for reason of his views about religion and because he is a professed atheist. The Tribunal accepts the applicant should not be required to alter, renounce or conceal his religious beliefs to avoid a real chance of serious harm. The Tribunal considers he would face the serious harm throughout Bangladesh and based on the country information outlined above that he would be unlikely to be afforded effective protection against the harm he fears.
55. The Tribunal notes the applicant’s claim to fear harm in Bangladesh on account of his political opinion but in light of the above it did not find it necessary to make findings in respect of this claim.
[1] DFAT Country Information Report, Bangladesh, November 2022
[2] Freedom House, Freedom in the World 2023, Bangladesh
[3] UK Home Office, Country policy and information note: religious minorities and atheists, Bangladesh, March 2022

For the above reasons, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.
Tania Flood
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.
…

[2023] AATA 2074

11 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction