1916833 (Refugee)

1916833 (Refugee) [2023] AATA 4315 (13 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1916833
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Roslyn Smidt
DATE:13 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 September 2023 at 2:09 PM
CATCHWORDS
REFUGEE – protection visa – Iraq – fears harm from Asaib Ahl al Haq (AAH) militia – threats and physical abuse – refused to join group – relocation to avoid forced recruitment – credibility issues – changing evidence – no evidence that AAH or other militia groups currently engage in forced recruitment or use violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), 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
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who is a citizen of Iraq, applied for the visa on 4 March 2019. The delegate refused to grant the visa on the basis that he found his claims to lack credibility and did not accept that his fears of harm were well-founded.
3. The applicant appeared before the Tribunal on 6 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
CRITERIA FOR A PROTECTION VISA
4. 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.
5. 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.
6. 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).
7. 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.
8. 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.
BACKGROUND
The applicant is a [age] year old man of Shia Muslim faith from Baghdad. His father and one of his brothers are deceased. One of his sisters resides in Australia. The other [sisters] reside in Europe. His mother and surviving [brothers] are residents of Iran.
The applicant completed high school in June [year] and from then until March 2017 he worked [at] a [workplace] in Baghdad. According to the application lodged on 4 March 2019, the applicant resided at the same address in Baghdad from December 2005 until his departure for Australia. Between September 2012 and October 2016 he travelled to Iran eight times, mostly to visit relatives.
The applicant’s marriage had been arranged through relatives. His wife came to Iraq in September 2015 and they signed the religious marriage contract after which they travelled to Iran from October 2015 to November 2015.
The applicant was granted a prospective marriage visa on 20 February 2017. He arrived in Australia [in] March 2017. He married [in] 2017. His wife is an Australian citizen. They have two children, a son born in [date] and a daughter born in [date].
The applicant applied for a partner visa on 22 June 2017. On 11 July 2018 he was asked to provide additional information regarding his application. A message was also left on his mobile phone asking him to respond to the request. No further information was received. The delegate refused the application because he was not satisfied on the evidence before him that he met the requirements for the visa.
On 10 September 2018 the Tribunal received an application for review. However, this was over 21 days since the refusal of the application and the Tribunal therefore did not have jurisdiction to review it. The applicant was advised of this on 16 October 2018.
On 21 and 22 November 2018 the applicant lodged a medical treatment visa application, but they were deemed to be invalid.
On 23 November 2018 the applicant lodged a second application for review. The Tribunal found that it did not have jurisdiction to review the application. The applicant was advised of this on 11 February 2019.
The applicant lodged an application for protection on 4 March 2019.
CLAIMS AND EVIDENCE
According to a statement of claims dated 4 March 2019 the applicant feared returning to Iraq because he was at risk of harm from the Asaib Ahl al Haq (AAH) militia which had a strong presence in his local area. He claimed that members of the group confronted him while he was on the way to his father’s shop and asked him to join them. He told them that he was neutral in relation the militias and political groups operating in the area and he did not believe in the use of violence to resolve differences. The men were very aggressive and one of them punched him in the stomach several times. They told him to think things over and said that he was either with them or against them.
After this incident the applicant was unable to sleep or eat. He stopped going to work at his father’s shop because he was worried that members of AAH would be waiting for him. He had several confrontations with the group during which he was threatened, abused and punched. He could not go to the police for protection because the group and its leader, Qais al-Khazali, were very prominent in the area. He went to Iran several times to stay with his uncles.
The applicant said that the situation in Iraq had not changed significantly since his departure. The country is run by armed groups and the police and army cannot protect him.
The applicant was interviewed by a delegate on 22 May 2019. He said that the problems with his partner visa application had arisen because of negligence by his migration agent. When asked why he had applied for a medical visa rather than a protection visa when his spouse visa was refused, he said that he had done this to gain time while he sought advice from a migration agent or lawyer. He said that he had not spoken to the agents or lawyers he consulted about his fear of returning to Iraq because it did not occur to him to do so. All of the advisers to whom he spoke about his situation had all advised him to leave Australia. He lodged an application for protection after a friend advised him to do so.
The applicant said that the area where he lived was controlled by the Qais al-Khazali party (Qais al-Khazali is the leader of AAH). In late 2014 to early 2015 he was on the way to the [workplace] where he worked; he was beaten by two members of the group. The delegate asked why he had been targeted in this way. He said that members of the group would attempt to attract new people to join the group after prayers at the Mosque. People in the area knew which group locals supported and AAH was aware that he was not affiliated with any group, so they tried to convince him to join the group. Members of the group approached him on many occasions trying to convince him to join, but he always refused. They told him that they were against ISIS and they were trying to protect Islam and Shia Muslims. They also told him that they could provide him with money and work and he would have strength and nobody could cause problems for him.
The applicant said that the group had begun to approach him when ISIS first became a problem and Shia militias began to form and attract members. This was several months before he was attacked. Prior to the assault members of the group spoke to him nicely and tried to convince him to join. They also tried to attract his younger siblings who were only children at the time. In order to avoid these discussions, he stopped going to the Mosque. Members of the group asked him why he was avoiding them. He told them that he did not want to join their group or any other group. After that they started to become aggressive and eventually they assaulted him. They told him that if he was not with them, he must be against them.
The applicant was very upset after he was attacked. He wanted to leave the country and thought about going to Iran. His mother was living in Najaf at the time and a few days later he went to Najaf and then to Iran. He could not remain in Najaf because the groups were also active there and if he had remained there, he would have faced the same problems. He went to Iran and a number of places because he did not want to be in Baghdad because many people were joining militia groups.
The delegate noted that he had previously stated that he had been confronted and assaulted on other occasions after the first attack. He said that he was frequently confronted, but he was only assaulted on one occasion. The delegate noted that this appeared to be at odds with his earlier evidence which suggested that he had been assaulted more than once. He said that he had been confronted every time he left the house. He did not report these incidents to the police because it would have been pointless.
The delegate asked where the applicant went after his final visit to Iran. He said he moved around and spent time in different places, including in Karbala. He also returned to his home in Baghdad and resided there for a year to 18 months while waiting for his prospective marriage visa to be issued. Militias controlled the area, so he could only go out in the morning because they were active in the afternoon. He said that members of the militia would not approach him at home because he belonged to a tribe, but he was at risk of harm outside his residence.
The applicant said that at the time of his interview his family had left Iraq permanently. His brother was studying in Iran and sponsored his mother to join him there. Another brother lived in Najaf.
At the hearing on 6 September 2023 the applicant repeated the claim that he had been assaulted by members of Asaib Ahl al-Haq in 2014 or 2015 because he had refused to join the group. He said that this was the only time he was attacked because after the attack he had moved from place to place. I advised him I was aware that the militias such as Asaib Ahl al-Haq which were formed or re-emerged at that time engaged in violence, but it was not my understanding that they engaged in forced recruitment. I advised him that the evidence appeared to suggest that groups used religious and social media networks and that there were many willing recruits. I asked if there was any particular reason they wanted to recruit him. He said that his family was wealthy and well known in the area and added that everyone in the area was expected to join the militias or a least sign up for one of the political groups operating in the area.
I advised the applicant that while it was understandable that he did not apply for protection while his spouse visa was being processed, I had difficulty understanding why he had applied for a medical visa rather than seek protection after his spouse visa application was refused. He said that he had lacked knowledge of the law and his son was suffering from health issues at the time. He just wanted to be with his family, but he was poorly advised.
I asked the applicant what he feared would happen to him if he returned to Iraq now. He said that Qais al-Khazali and Nour al-Maliki were now in power and because they were more powerful, they would seek to harm him. He also said that the Iraqi government was under the control of Iran. I observed that it seemed unlikely that the Iraqi government would have a particular interest in him. He said that the problem was that everyone in his street and his tribe were involved in the problem and he would have to live in that street if he returned to Iraq. I observed that he appeared to have lived in other areas in the past and that he had stated that his family was well off which suggested that he could avoid these problems by relocating to elsewhere in Iraq. He said that he had not been confronted by anyone when he was in Najaf, but there had been potential problems from people such as followers of militia leader Moqtada al Sadr if they learned he did not belong to any militia group, so he had gone to Iran.
I asked the applicant if he feared that he would be harmed by anyone for any reason other than his refusal to join a militia. He said that his entire family had gone to live in Iran in 2018 or 2019. They had not been personally attacked or threatened by anyone. They left because of the general situation in Iraq. One of his friends told him that in about 2021 Hezbollah had taken over a large piece of land owned by his family. I observed that it appeared his family had been the victims of crime and asked if they had attempted to regain control of their land. He said that militia members also took some land owned by one of his uncles using forged documents and told him that he would have to pay them if he wanted the land to be returned. He said that in Iraq those who had power could do what they wanted.
I asked the applicant if there was anything he would like to add. He said that if he went back to Iraq, he would face many problems but provided no specific information on the nature of these potential problems.
OTHER CONSIDERATIONS
As noted above, the applicant is married to an Australia citizen and has two young Australian citizen children. According to his evidence he is their only financial support and also provides them with significant emotional support and they would experience significant problems and distress if he had to leave. I advised him that I would refer his case to the Department for possible referral to the Minister and suggested that he provide evidence of his circumstances to support his request.
COUNTRY INFORMATION
Iraq has experience political, sectarian and ethnic violence for many years. Ongoing sectarian tensions fuelled the rise of ISIS, a Sunni Salafist extremist group which captured large parts of Iraq in 2014/15. A number of Shia militias which had been active during the occupation of US forces prior to 2011 regrouped and new militias were formed to combat this threat. Recruitment by these militias was boosted by a fatwa issued by Shia religious leader Grand Ayatollah Sistani in June 2014 calling on men to join the fight against ISIS. In the same month Prime Minister Nouri al-Maliki formed the Popular Mobilisation Forces (PMF), a state-sponsored umbrella military organisation composed of approximately 50 militia groups operating nationwide. Some militias have political wings and parliamentary representation. Many PMF elements reportedly answer to the Iranian government, in particular to the Islamic Revolutionary Guard Corps.
A number of reports suggest that AAH and other Shia militias had no difficulty attracting recruits following the call by Sistani. None of the reports suggest that the AAH or other militias engaged in forced recruitment. Reports suggest that AAH recruitment has focused on traditional propaganda efforts to raise the group’s profile and a comprehensive religious system aimed to indoctrinate and recruit members. The group also uses social media.[1]
[1] See for example Counter extremism project, Asaib Ahl al-Haq Asaib Ahl al-Haq (counterextremism.com) accessed on 6 September 2023 and The Resurgence of Asa’ib Ahl al-Haq | Institute for the Study of War (understandingwar.org)
Human rights organisations and in-country sources report that some PMF groups engage in killing, kidnapping and extortion throughout the country, particularly in ethnically and religiously mixed governorates.
Iraq held a parliamentary election in 2018, but the following year large-scale protests broke out against corruption, non-delivery of essential public services and perceived interference by foreign powers, particularly Iran. These protests were violently repressed by security forces and Iran-aligned militia groups. Protests again broke out following the 2021 parliamentary election. Talks to form a new government stalled, largely because of protests and conflict between different Shia political factions and their supporters and militias. Al-Sudani was confirmed as Prime Minister in October 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
It is plausible that the applicant was approached by members of AAH who wanted to recruit him in late 2014 or early 2015. As noted, militia groups were actively seeking recruits for the fight against ISIS at that time. It is also possible that he was involved in an altercation with members of the group on one occasion when he refused to join the group after being approached in the street. And it is plausible that he would have avoided places such as Mosques to avoid members of AAH who were attempting to recruit new members. However, I do not accept that he was forced to flee Baghdad and move from place to place to avoid problems with members of the group who were actively seeking to harm him because he refused to join.
In the first place, much of his evidence regarding his interactions with the AAH was confused and unpersuasive. According to his initial application he had several confrontations with the group during which he was threatened, abused and punched. In oral evidence to the delegate and the Tribunal he said that he was only abused on one occasion. He claims that he had to move from place to place to avoid problems, but also told the delegate that he had mostly resided at his home in Baghdad while waiting for his visa for Australia to be processed. He told the delegate that he was safe in his home because of his membership of his tribe, but during the hearing he said that he was at risk of harm from members of his tribe.

Secondly, as noted above, militias found many willing recruits in 2014/2015 and the evidence does not suggest that the group engaged in forced recruitment or that they would pursue or seek to harm an individual merely because he declined to join the group. While it is possible that there were some incidents of conflict between individual members of the AAH and individuals who did not support the group such as the isolated incident of abuse the applicant claims to have experienced, I do not accept that he was at risk of continuing harm from the group such that he was forced to leave Baghdad and move from place to place or to remain in his house for extended periods.
Thirdly, I find the claim that the applicant failed to tell the migration agents or lawyers he consulted after his spouse visa application was refused that his life would be at risk if he returned to Iraq implausible. If he genuinely feared serious or significant harm on return to Iraq, I believe he would have raised this issue when the lawyers and agents he consulted advised him that he would have to leave Australia in order to resolve his migration issues. Many Iraqis have sought asylum in Australia in recent years and I believe that the applicant would have been aware of this. Furthermore, I believe that the migration agents or lawyers he consulted after his spouse visa application was refused would have asked him about his situation in Iraq, particularly given the history of religious and political violence which has caused problems for many Iraqis over an extended period of time. I find his apparent failure to discuss his problems in Iraq with the people from whom he sought advice and his failure to apply for protection in a more timely manner a strong indication that he did not fear serious harm in Iraq at that time.
After considering all of the relevant evidence I do not accept that the applicant was of continuing adverse interest to the AAH at the time he left Iraq because he declined to join the group and I am not satisfied that he faces a real chance of experiencing serious or significant harm if he returns to Iraq because he refused to join the AAH some eight or nine years ago. Furthermore, there is nothing in the evidence before me which suggests that the AAH or other militia groups currently engage in forced recruitment or use violence against individuals who do not join their group and I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm on return to Iraq within the reasonably foreseeable future because of his refusal to join a militia.
The only other issues raised by the applicant are what appears to have been the theft of some land belonging to his family and his fear that he might face problems with others because he would be irritated.
The theft of his family’s land appears to have been an opportunistic act carried out after they left the country and were unable to protect their rights. There is nothing in the evidence currently before me which suggests that the applicant faces a real chance of experiencing serious or significant harm from those who stole the land if he returns to Iraq within the reasonably foreseeable future.
In reaching this conclusion I have considered the general situation in Iraq. It is clear from the evidence that there are continuing problems relating to the general security and human rights situation in Iraq in part as a result of the role played by some militias. However, on the evidence currently before me I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm if he returns to Iraq within the reasonably foreseeable future because of this situation.
CONCLUSIONS
After considering the applicant’s claims individually and cumulatively I am not satisfied that he faces a real chance of suffering serious harm for any reason if he returns to Iraq now or in the reasonably foreseeable future. I am therefore not satisfied that he has a well-founded fear of persecution for any of the reasons set out in s 5J(1) and thus not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
After considering the applicant’s claims individually and cumulatively I am not satisfied that there is a real risk that he would experience significant harm for any reason if he returned to Iraq. I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iraq, there is a real risk that he will suffer significant harm. I am therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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 4315

13 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction