1915654 (Refugee)

1915654 (Refugee) [2022] AATA 3198 (11 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1915654

COUNTRY OF REFERENCE: Turkey
MEMBER:Sheridan Lee
DATE:11 August 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 August 2022 at 1:07pm
CATCHWORDS
REFUGEE – protection visa – Turkey – imputed political opinion – religion – involvement with Fethullah Gulen movement – vague and implausible evidence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 36, 65, 351, 424AA
Migration Regulations 1994, Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78
WZARI v MIMAC [2013] FCA 788
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 a delegate of the Minister for Home Affairs on 11 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old male from Izmir, Turkey. He first arrived in Australia [in] August 2009 on a [temporary] visa. Since his first arrival, the applicant has departed and returned to Australian on eight occasions.
He applied for the protection visa on 14 November 2016 on the basis that he would be persecuted by the Turkish government for his involvement with the Fetullah Gulen movement. The delegate did not accept the applicant’s claim to have volunteered with the Gulen movement and refused to grant the visa.
The applicant applied to the Tribunal for merits review of that decision on 17 June 2019. A copy of the delegate’s decision was provided to the Tribunal with the application for review. He was first invited to attend a hearing before the Tribunal to take place on 19 January 2022, however due to regulations imposed to control the spread of COVID-19, the hearing could not take place on that day. The Tribunal offered the applicant a video hearing, however he requested that the hearing be postponed until it could be heard in person. I agreed to the applicant’s request, and the hearing was rescheduled.
The applicant appeared before the Tribunal on 15 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.
The Tribunal viewed a copy of the applicant’s Turkish passport, issued [in] 2021. I accept that the applicant is a citizen of Turkey and will assess his claims against Turkey as the country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.
The issue for determination is whether, based on what is accepted of the claims made and arising on the evidence, the applicant is a person to whom Australia has protection obligations. This involves assessing the credibility of the factual basis for the claims and assessing what is accepted against the applicable legal framework.
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, I have 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
Background
The applicant claims to be [an age]-year-old man, born in Izmir, Turkey. He adheres to the Islamic faith and can communicate in Turkish and English. On his application for protection form, the applicant reported that he completed primary school at [School 1] and high school at [School 2]. No post-secondary qualifications were listed. The applicant had a career as a seaman for more than [number]-years, working as a [specified role] on a ship when he first travelled to Australia. At the Tribunal hearing, the applicant gave evidence that he had visited more than 80 countries due to his work. A copy of the applicant’s Seaman’s Book, issued by the Republic of Turkey [in] 2009, was provided to the Department as evidence of his service at sea.
At the time of the Tribunal hearing, the applicant was not working. He noted that he had no work rights on his current visa, however he had previously worked in [a specified industry] when his visa conditions allowed.
The applicant first arrived in Australia [in] August 2009 on a [temporary] visa. Since his first arrival, the applicant has departed and returned to Australian on eight occasions. The applicant gave evidence that he travelled through the ports of [specified Australian cities] on his ship. He further claimed that he last returned to Turkey in 2013, noting that he was unable to return since that time because of his visa restrictions.
On 4 December 2012, the applicant was granted a [different temporary] visa. Then in 2013 he was granted a Subclass 300 Prospective Marriage visa. In a written statement provided with his application for protection, the applicant claimed that he met his former partner, [Ms B], in Izmir in 2009 and they had a de facto relationship in Turkey for two years. He gave evidence at the Tribunal hearing that his relationship with [Ms B] did not last a year once he arrived in Australia. There was a marriage date set, but the couple separated before they were married.
On 1 April 2014, the applicant lodged an application for a [Visitor] visa while onshore. The application was refused by a delegate of the Minister on 7 April 2014. The applicant appealed that decision to the Tribunal, and on 6 January 2015, the Tribunal (differently constituted) affirmed the decision to refuse the visa. The applicant then requested that the Minister exercise their discretion under s 351 of the Act to grant the visa. The request was unsuccessful.
The applicant had a child with his previous partner, who was aged [age] on the day of the Tribunal hearing. A copy of a birth certificate issued by the Victorian Registry of Births, Deaths and Marriages for [Son A] was provided to the Tribunal. The certificate lists [Son A’s] date of birth as [date] and his parents are listed as [Ms B] and [the applicant]. [Son A] is an Australian citizen by virtue of having been born to an Australian mother.
At the Tribunal hearing, the applicant gave evidence that he had to take action through the courts to gain access to his son. He provided the Tribunal with a Final Order issued by the Federal Circuit Court [in] February 2015. The consent orders attached provided the applicant with equal shared parental responsibility for the child and set out the times that he may spend with the child. Despite the court order, the applicant advised the Tribunal that he was no longer in contact with his former partner and was unaware of his son’s whereabouts.
Following the dissolution of his engagement, the applicant went on to meet a new partner, [Ms A]. The couple were married [in] February 2020. A copy of the certificate of marriage and photos from the wedding were provided to the Tribunal. [Ms A] informed the Tribunal that she is an Australian citizen.
On the date of the Tribunal hearing, the applicant advised that he had a [sibling] living in [Country 1] and a [sibling] living in Istanbul. Both his parents had passed away.
Fear of harm in connection with past involvement with the Fethullah Gulen movement
The applicant claims to fear future harm from Turkish authorities as a result of his past involvement with the Fethullah Gulen movement. In a written statement provided with his application for protection form, the applicant claimed that for a short period prior to his arrival in Australia, he was involved in the volunteer program at schools owned by the Gulen movement. The names of the schools were not stated, however some information about [College 1] was submitted to the Department. He alleged that everyone knew of his role with the school.
The applicant expressed fear that he would be arrested and detained on return to Turkey. Further, he alleged that he would be at risk of indefinite detention, torture and physical abuse from police and in prison. The statement went on to outline that he would be unable to find employment and would be homeless as a result of his association with Fethullah Gulen.
The applicant provided the Department with an article by Mevlut Cavusoglu, Turkish Minister for Foreign Affairs, titled Turkish Foreign Minister: Fighting the Enemies of Democracy with Democracy, published on on 8 August 2016. He also supplied screenshots of a [social media] page for ‘[a named college]’ and the location of ‘[College 1]’ on Google Maps. Google reports that the college was located [at a location] in Izmit and lists the business as permanently closed.
At the Tribunal hearing, the applicant explained that as a result of the attempted coup in Turkey in 2016, the Fethullah Gulen movement was declared a terrorist group. However, it was not viewed that way when he was involved between 2006 and 2011. He alleged that he was responsible for organising communication between Gulenist schools and parents. When asked to elaborate, he explained that he ran a bus that collected parents and took them to school events for ‘[a named college]’ or ‘[College 1]’.
As a [seaman], the applicant estimated that he spent about 4 to 5 months at sea each year and the remaining time in Izmir. He did not volunteer his service to the Gulen movement continuously, but whenever he was in Izmir. The applicant felt that the Fethullah Gulen movement was beneficial to the community and future generations. At the time he was involved, he didn’t anticipate it getting to this stage.
The applicant alleged that his name would be on a list of people involved in the Gulen movement. I questioned how the applicant was aware that his name had been included in a list of Gulen supporters. In response, he said that because he was involved, his friends made him a member. They told him that if he was involved, that’s how it is. The applicant confirmed that to his knowledge, his name had never been published publicly in association with the Gulen movement.
The applicant said that his friends who remained in Turkey had been incarcerated. He learnt of their incarceration through social media and saw newspaper articles. When I asked the applicant to provide names for any of his friends he couldn’t. He commented that it was large group, and he couldn’t remember any of them.
The applicant confirmed that he had not been involved with the Gulen movement since 2011. He also confirmed that no other members of his family were involved in the movement.
I highlighted that the applicant was not in Turkey at the time of the attempted coup and had not been involved with the Gulen movement in Australia. I questioned why the Turkish Government would associate him with the coup or identify him as a Gulenist. The applicant alleged that the Turkish Government is engaged in a ‘clean-up’.
The applicant expressed the belief that the Turkish Government were gathering secret information about him while he’s in Australia. He gave no further evidence in respect of what information it would be collecting or how.
The applicant had a new passport issued by the Turkish [authorities] in [Australia], valid from 2021 until 2031. The applicant confirmed that he experienced no issues securing the passport.
The applicant’s wife, [Ms A], gave evidence to the Tribunal that she is an Australian citizen, however previously lived in Turkey. [Ms A] said she had attended Gulen conferences in Turkey. The President of Turkey, Recep Erdogan, would attend the meetings too. He would tell people to trust Gulen. [Ms A] said that her son attended a Gulen school until year 12 and is now employed as [an occupation 1].
[Ms A] supported her husband’s evidence and again highlighted the dire situation for Gulenists in Turkey. She alleged that even children that attended Gulen schools in Turkey were incarcerated.
In addition to her evidence at the Tribunal hearing, [Ms A] provided a written statement, dated 17 September 2021, along with photographs of the couple together.
As previously noted, on 6 January 2015, the Tribunal affirmed the decision of the delegate to refuse the applicant a visitor visa. In her decision, the Tribunal Member noted that the applicant gave evidence that he wanted to remain in Australia indefinitely, but was unable to find a suitable visa for his circumstances. At the Tribunal hearing, I put this information to the applicant in accordance with s 424AA of the Act.
I advised the applicant that I had some information before me that would be the reason or part of the reason for affirming the decision under review. I explained that the information was relevant because it suggests that the current visa application was made in order to achieve a particular migration outcome, as opposed to being motivated by a genuine fear of persecution if he returned to Turkey.
In response, the applicant explained that his son was here in Australia and he wanted to be nearby, in a position to support his son. He went on to explain that before 2016 it wasn’t obvious that members of the movement were being incarcerated.
The Gulen movement started as a religious movement in Turkey during the 1960s through the sermons of Muslim cleric, Fethullah Gulen. Over the years, the Gulen movement transformed into a civil society movement that included a cluster of religious, educational and social organisations in Turkey and abroad.[1] The relationship between Gulen and Erdogan had turned sour by December 2013, when then Prime Minister Erdogan claimed that Gulen and his supporters in the judiciary were using a corruption probe into Erdogan’s inner circle to bring down the government.[2] The situation in Turkey for individuals associated with the Gulen movement deteriorated significantly following the attempted coup d’etat against the Turkish Government by elements of the Turkish military on 15 July 2016.
[1] Immigration and Refugee Board of Canada, Turkey: The Fethullah Gulen Movement, including structure, areas of operation and activities; procedures for becoming a member; roles and responsibilities of membership; treatment of supporters; the Gulen Movement in Canada, including connections with organisations in Turkey and ability to confirm an individual's involvement with the Gulen Movement in Turkey (2014-September 2016), accessed at Kareem Shaheen, ‘Erdoğan v the Gülenists: from political allies to Turkey's bitter rivals’, The Guardian, 20 July 2016, accessed at Erdoğan v the Gülenists: from political allies to Turkey's bitter rivals | Turkey coup attempt | The Guardian.
Following the July 2016 attempted coup, the Turkish government immediately blamed Gulen for orchestrating an overthrow. Authorities used state of emergency powers to remove large numbers of suspected Gulen supporters (and other political opponents) from the civil service, military, police, judiciary and academia, as well as expropriate private assets from suspected supporters. The Department of Foreign Affairs and Trade assesses those accused of membership of the Gulen movement face a high risk of adverse official attention, including arrest and prosecution. In some cases this is justified, however in other instances the burden of proof for membership of the Gulen movement does not meet credible evidentiary standards, and the accused have limited ability to defend themselves.[3]
[3] Department of Foreign Affairs and Trade, Country Information Report Turkey, 10 September 2020.
While the socio-political situation in Turkey supports the applicant’s response in respect of the timing of his claims for protection, it is not sufficient to substantiate a well-founded fear of persecution when viewed in conjunction with the totality of evidence put forward by the applicant. In this context, I still hold concerns about the applicant’s evidence before the Tribunal during the review of his visitor visa refusal.
The applicant gave no evidence to suggest that he personally joined any clubs or associations run by or affiliated with the Gulen movement or that he completed his education at a school run by or affiliated with the Gulen movement. The applicant did not send his son to a school run by the Gulen movement. He has not been in Turkey since 2013 and was not in the country at the time of the attempted coup in 2016. The applicant confirmed that he has not participated in any events run by the Gulen movement since 2011 or at any time while he has lived in Australia. He knew of no family members involved in the Gulen movement in Turkey.
The applicant alleged that he ran a bus service that transported parents of students at a Gulen school to events run by the school on a part time, volunteer basis between 2006 and 2011. He claimed that his involvement with the school would be known to Turkish authorities because his name had been included in a list of Gulen supporters as a result of his friends making him a ‘member’ of the Gulen movement. When questioned about his friends, the applicant was unable to name a single individual. This is despite claiming to know that some of his friends had been incarcerated as a result of information on social media and published in news articles. It is implausible that the applicant would be confident in the knowledge that his friends are in prison if he can’t remember who any of his friends are. I found the applicant’s evidence in respect of his involvement with the Gulen movement to be vague and unconvincing. I do not accept that he volunteered for a Gulenist school or any other religious, educational and social organisations associated with the Gulen movement. I do not accept that he would be of adverse interest to the Turkish authorities based on any association with Fathullah Gulen.

I accept that the applicant is now married to a woman of Turkish descent and that she attended meetings hosted by Fathullah Gulen and sent her child to a Gulenist school. I do not accept that this would bring the applicant to the attention of Turkish authorities. The couple were not married when the applicant lived in Turkey and the applicant is not the father of her child. The applicant was not associated with [Ms A] when she lived in Turkey and she expressed no intention to return. I note that in her written statement, [Ms A] said “I would be devasted if he [[the applicant]] had to go back to Turkey. I don’t want to live in Turkey, we both see Australia as our home only… As an Australian Citizen, I would appreciate the support and justice from the migration department and the government and accept our application for [the applicant] to stay here with me and his son.” Further, the applicant did not express any interest in anti-government groups or activities that may otherwise bring him to the attention of the Turkish authorities or give cause for the Government to monitor his personal circumstances.
I acknowledge that the applicant expressed the view that the Fethullah Gulen movement was beneficial to the community and future generations. Nevertheless, I do not accept that he was ever motivated to participate in the movement in the past, nor that he would be motivated to do so in the future.
I do not accept that the applicant would face a real chance of serious harm, now and into the reasonably foreseeable future, on the basis of his political or religious views or his imputed political or religious views if he were returned to Turkey.
For the same reasons that I found there is no real chance of serious harm, I find that the real risk element of the test in s.36(2)(aa) has not been met in respect to his political or religious views or his imputed political or religious views.[4]
[4] as per the judgment in MIAC vSZQRB [2013] FCAFC 33.
Fear of harm in connection with removal from Australia and separation from family
The applicant outlined in his application for protection that he is close to his son and could not live without him. Despite not knowing of his sons whereabouts by the day of the Tribunal hearing, I accept that the applicant would like to maintain a relationship with his son if his relationship with his former partner would allow. Throughout the application and review process he expressed a general desire to remain in Australia to be near his son, who is an Australian citizen. The applicant is also married to an Australian citizen and on the basis of [Ms A’s] evidence, I find that his return to Turkey would lead to the separation of husband and wife.
While he raised no specific claims in respect of harm that may arise as a result of separation from his son or wife, it is worth making the following observations. I accept that the applicant would find it difficult to be separated from his son and wife if he returned to Turkey, especially with limited prospect of visiting Australia, at least in the short-term. I further accept that the separation of a parent from a child and a husband from a wife would take an emotional toll.
Any harm the applicant may suffer as a result of the separation from his Australian family is inevitably the result of his removal from Australia. He would not be harmed by the Government of Turkey or actors within it. This does not amount to persecution in the context of the refugee criteria. Persecution must involve systemic and discriminatory conduct. In these circumstances there is no deliberate or discriminatory behaviour on the part of Turkey or any individual within it. The applicant would not suffer harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. The separation from his family, and its impact upon return, is a situation specific to his individual circumstances.
For the reasons given above, I am not satisfied that the applicant’s separation from his Australian family gives rise to Australia’s protection obligations under s.36(2)(a).
Furthermore, the judgments in SZRSN v MIAC and GLD18 v MHA confirm that separation from one’s family members in Australia, where the claimed harm arises from the act of removal itself, will not meet the definition of ‘significant harm’ in s 36(2A).[5] For this reason, I find that the applicant’s separation from his son and wife does not constitute significant harm for the purposes of complementary protection.
[5] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–-[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201)
In conclusion, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sheridan Lee
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 3198

11 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Appeal

Natural Justice