1917564 (Refugee)

1917564 (Refugee) [2021] AATA 4887 (18 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1917564
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Tamara Hamilton-Noy
DATE:18 October 2021
PLACE OF DECISION:  Melbourne
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 18 October 2021 at 1:52pm
CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – Voluntad Popular – Primero Justicia (Justice First Party) – attack by colectivos – credibility assessment – delay in seeking protection – applicant’s brother’s failure to claim protection in Australia – particular social group – returnee to Venezuela – food and medical shortages – severe humanitarian emergency – COVID-19 pandemic – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
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
Background

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 July 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant arrived in Australia [in] May 2016 and claimed protection on 31 July 2018.
Claims and Evidence
Evidence before the Department
In his written protection application, the applicant stated that he was born in Caracas. He stated that he has never been married, that his father and mother were living in [Country 1], his brother in Australia and his sister in [Country 1]. He stated that both parents were born in Venezuela. The applicant stated he completed high school in 2010 and then undertook a diploma in [Discipline 1] at [University 1] and an English course at [Institute 1]. Since arriving in Australia he had undertaken a Certificate IV in [Subject 1] and a Certificate III in [Subject 2].
The applicant provided a written statement in support of his claims, which stated, in summary, that he came to Australia to study in May 2016 and had not returned to Venezuela since. His older brother and wife are in Australia and the applicant lives with them. His parents and sister are in [Country 1]. At the time of the application, he was completing an [Subject 2] course due to finish in December 2018 and rather than apply for another student visa, he had decided to apply for protection. He has watched in disbelief at what is happening in his country; it has been destroyed and the people are fleeing en masse and becoming refugees, including his family.
The applicant stated that he had his brother had, that year, decided to get their parents out of Venezuela and had sent them to [Country 1] where his sister was already living. They were at risk of starvation, the government was attacking innocent people, and his father suffers from a skin condition and was receiving no medical care in Venezuela.
The applicant stated that their lives were good before the current troubles. His parents both worked in a [workplace] and he attended university and then also worked in a [workplace]. His family is strongly anti-Maduro and he and his parents attended many protests. He thinks he attended 13 in total, six of those with his parents. The last protest he attended was in 2016, a few months before he left for Australia. He was also going to protests with his girlfriend who had subsequently fled to [Country 2]. The applicant had attended one protest in 2014 where bullets were fired at the crowd. A second cousin, [Mr A], was at the same protest and was shot at and then held by police for one month. Another extended family member, [Mr B], was a prison and contributed to a book and has also fled to [Country 1].
The applicant stated that he doesn’t like the current government because it has taken away their normal lives, they cannot enjoy working life or family life, there is no freedom or normality, nothing runs properly and there is no safety and even when at university the applicant experienced protests and unrest. The applicant has helped opposition groups in the past, including Voluntad Popular in 2015 when he and his friends were attacked by government supporters. He later supported Primero Justicia (Justice First Party) and would go to protests to support this group. His support for this group did not go on for long because he left for Australia.
The applicant stated that in the past he was scared he may be attacked by government supporters who are now given a lot more power and who are told to hunt down anti-government supporters and to occupy their homes. Even minor comments on the internet can land someone in jail. The applicant is afraid that, if he returns to Venezuela, he could be arrested, imprisoned or killed by the government or their supporters who are organised in groups called colectivos. In addition, his family has left Venezuela and he would have no support there and nowhere to go. He has lost touch with most of his friends. The country is in chaos and living and commuting is much harder, if not impossible. Further, he is afraid of the lack of control and levels of crime and lack of food and medical care.
The applicant attended a Department interview on 29 January 2019. The Tribunal has had access to a recording of that interview, relevant parts of which are referred to further below.
A delegate of the Department made adverse credibility findings about the applicant’s claims, based on his delay in claiming protection; the fact that documents he provided to the Department had not been translated; the applicant’s brother’s failure to apply for a protection visa; and discrepancies in the information he gave about his participation in political protests and the perception of the interviewer that the information he provided was vague and limited. The delegate accepted the applicant attended one protest but did not accept he was involved with Voluntad Popular or Primero Justicia and found that he had been involved in limited political activities in Australia. The delegate considered country information relating to Venezuela’s political and general human rights situation and was satisfied from this information that people perceived as opposing the government could face a real chance of serious harm and that the risk of harm to an individual depended on their level of political activity. The delegate found that that applicant was not targeted or harmed before leaving Venezuela because of any political activity and found that he does not face a real chance of serious harm because of his possible involvement in future political activity, because of his perceived wealth or because of his actual or imputed political opinion. The delegate found that claims raised by the applicant relating to the economic situation and access to health care did not amount to significant harm; and that there was not a real risk he would face significant harm because of his political views or perceived wealth.
A copy of the Department’s decision was provided by the applicant to the Tribunal.
Evidence before the Tribunal
On 21 September 2021, the Tribunal wrote to the applicant stating that it had considered all of the evidence before it and was unable to make a favourable decision on that information alone. The applicant was invited to a hearing by MS Teams video on the basis that the Tribunal’s Melbourne Registry was closed at the time due to the COVID-19 pandemic.
On 28 September 2021, the applicant’s representative provided to the Tribunal written submissions, a statement prepared by the applicant dated 28 September 2021, political party identifications and translation of these documents and a media report on the applicant’s cousin. Relevant parts of these documents are discussed further below.
The hearing was conducted on 6 October 2021 by MS Teams video. The applicant’s representative also attended the hearing by MS Teams video and the Tribunal was assisted during the hearing by a Spanish interpreter. The Tribunal was satisfied from the audio and video during the hearing that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing.
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 (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.
Assessment, Reasons and Findings
The applicant travelled to Australia on a Venezuelan passport and has at all times maintained that he is a citizen of Venezuela. The Tribunal accepts the applicant is a Venezuelan citizen and has assessed his claims against Venezuela as his country of nationality.
The Department delegate has made a number of adverse credibility findings about the applicant’s claims.
The delegate had concerns about the delay of the applicant in claiming protection. The applicant has consistently advanced that he was waiting to see whether the situation improved in Venezuela. The Tribunal notes that the applicant’s protection application coincided with the year his parents made a decision to leave Venezuela. Having regard to the totality of the applicant’s evidence, and given the findings of the Tribunal below about the applicant’s claims, the Tribunal makes no adverse findings about the applicant’s credibility based on his delay in claiming protection, noting that the applicant had a valid visa to remain in Australia and that it accepts that he was waiting to assess the ongoing unstable situation in Venezuela.
The delegate had concerns about the applicant’s brother’s failure to also claim protection. The applicant, while claiming to have attended protests with his ‘family’, has not at any stage asserted his brother was involved in protest activity in Venezuela. The applicant gave evidence that his brother left for Australia in 2014, at the time the applicant’s political activities are claimed to have commenced. The applicant’s brother apparently has another visa pathway for remaining in Australia. In the absence of any evidence supporting that the applicant’s brother also has claims for protection because of his own specific circumstances and that these circumstances are relevant to the applicant’s own claims for protection, the Tribunal makes no adverse findings about the applicant’s brother’s failure to claim protection in Australia.
The delegate of the Department did not accept the applicant attended more than one protest in Venezuela. The delegate made findings in their decision that the applicant claimed to have attended only one demonstration, did not mention involvement with Voluntad Popular or Primero Justicia or attendance at more than one demonstration, did not mention a 2016 demonstration or 2015 attack by colectivos and provided vague information about his involvement with Voluntad Popular and Primero Justicia. The Tribunal was provided a recording of the interview and has listened to that interview. During the interview with the delegate, the applicant was asked in detail about his experiences at one specific protest only. He outlined during the interview detailed reasons why he and his family had concerns about the Venezuelan government; he claimed that he had gone with Voluntad Popular to ‘protests’; he said that he had started attending protests with his family and had attended approximately 15 ‘big’ protests in Caracas; he said that he attended protests both with his family and with youths from university; he spoke extensively about Voluntad Popular and why he had become involved with that group, in particular his view’s about the group’s leaders; and he stated that he had not been involved with Primero Justicia for long and therefore didn’t know as much about them.
Similarly, the applicant was able to talk to the Tribunal in a detailed and credible manner about his family’s political experiences in Venezuela, the family’s experiences with the colectivos and the applicant’s own experiences protesting with his family and later with political groups. The Tribunal considered that the applicant’s evidence about these matters was spontaneous and plausible.
However, the Tribunal noted that, contrary to his written claims, the applicant did not assert at the Tribunal hearing that his cousin [Mr A] had been detained by police for one month. His oral evidence to the Tribunal at hearing was that his cousin had been shot at, and was then taken home and an attempt was made to clean his wounds and he was then taken to hospital. The applicant claimed his cousin was not charged, but was beaten and ‘left there’. When the discrepancies between this evidence and his written claims was put to him the applicant then claimed that his cousin was taken into custody but not charged.
The Tribunal is mindful that, when assessing claims, it should adopt a reasonable approach in making findings of credibility, based on relevant and material facts. Where an applicant’s account appears credible, the applicant should, unless there are good reasons to the contrary, be given the benefit of the doubt.[1] Further, the Tribunal is mindful that there may be instances where applicants have lied or exaggerated one part of their evidence and that this does not necessarily mean that their entire evidence is untrustworthy. Professor Hathaway, in referring to decisions of the Immigration and Refugee Board of Canada, states that:[2]
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse”. Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.
[1] United Nations High Commissioner for Refugees, Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196.
[2] Hathaway J., The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
A similar comment was made by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 (at [191]):
[t]he fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
The Tribunal has considered the totality of the applicant’s claims, the consistency of the core of his claims for protection and the manner in which he gave his evidence during a lengthy Tribunal hearing. The Tribunal was not persuaded that the applicant’s cousin [Mr A] was held by police for one month after attending a protest in or around 2014. However, the Tribunal is prepared to accept that the applicant’s cousin was involved in protest activity, was shot at a protest by police and was injured during this protest. The Tribunal is prepared to accept that the applicant was at the same protest but in a different location to that of his cousin. The Tribunal is prepared to accept the applicant was involved in protest activity in Venezuela, motivated by concern about the deteriorating situation and the hope for a change in government and that he attended some 15 or so protests in Venezuela.
Because the Tribunal is prepared to accept this evidence, and having regard to the documentary evidence provided by the applicant in support of his claims and to the information he has provided to both the Department and the Tribunal, the Tribunal accepts that the applicant was involved with Voluntad Polular and Primero Justicia while in Venezuela. The Tribunal accepts the applicant had more lengthy involvement with Voluntad Popular and that he was involved with Primero Justicia only briefly before he left Venezuela. Because the Tribunal has accepted the applicant’s claims about his past political activity in Venezuela, the Tribunal accepts his claims that, if he returns to Venezuela now or in the reasonably foreseeable future, the applicant would continue to be involved in protest activity due to his concerns about the current government.
The Tribunal notes that the claimed experiences of the applicant’s family are consistent with the food and medical shortages being reported across Venezuela in the years prior to his family leaving.[3] The Tribunal accepts that the applicant’s sister moved to [Country 1] in 2017, that his parents moved to [Country 1] in 2018 and that his brother moved to Australia in 2014. The applicant gave evidence that his parents had had difficulty finding food and that his father had suffered a skin illness and had found it difficult to obtain medicine in Venezuela. The Tribunal accepts the applicant’s uncle is recently deceased due to COVID-19, that another cousin moved to [Country 1] around 2018 and that other extended family are what the applicant described as moving ‘in and out of Venezuela’. The Tribunal accepts that the applicant’s family have all fled Venezuela. The Tribunal accepts that, if he returns to Venezuela now or in the reasonably foreseeable future, the applicant does not have any immediate family members residing in Venezuela and that his family home was abandoned as of 2018 and it is unknown what its current use or condition is.
[3] Human Rights Watch, ‘Venezuela’s Humanitarian Crisis’, 24 October 2016 at

Former President Hugo Chavez left a mixed legacy for Venezuela, having used income from oil reserves to launch social programs, build housing and reduce poverty, but also having left behind a disorganised economy, high inflation and general poverty experienced by 60% of Venezuelans as of his death in 2013.[4] His successor, Nicholas Maduro, was re-elected in 2018 in an election not considered free and fair.[5] During early 2019, a reported 40 people were killed and 850 detained in anti-Maduro protests.[6] Protest activity, similar to that described as having been experienced by the applicant, has occurred in Venezuela during 2020, with a wave of protestors calling for improved access to essentials although reportedly not calling for a change in government, and the involvement of riot police and colectivos used to crack down on protests.[7]
[4] Euronews, ‘Venezuela after Chavez, 8 March 2013 at
[5] Human Rights Watch, ‘World Report 2019, Venezuela: Events of 2018’, at
[6] Global News, ‘Over 40 Venezuelans killed, 850 detained in recent anti-Maduro protests: UN’ 29 January 2019 at
[7] The Guardian, Venezuela shortages prompt wave of protests across country’, 30 September 2020 at
As of 2021, Venezuela is facing a severe humanitarian emergency, with millions unable to access basic healthcare, adequate nutrition or safe water in homes. An estimated 5.5 million of a total population of 32 million citizens have reportedly fled Venezuela since 2014, motivated by political, economic, human rights and humanitarian causes.[8] In September 2020, a fact-finding mission found high level authorities to be responsible for atrocities that were described as amounting to crimes against humanity. The Maduro government has been responsible for extrajudicial executions, forced disappearances, the jailing of opponents, torturing of detainees and a crackdown on protestors. Human Rights Watch reports that persistent concerns include brutal policing practices, poor prison conditions, impunity for human rights violations, lack of judicial independence, and harassment of human rights defenders and independent media.[9]
[8] Human Rights Watch, ‘World Report 2021, Venezuela: Events of 2020’,
[9] Human Rights Watch, ‘World Report 2021, Venezuela: Events of 2020’, >
The COVID-19 pandemic has added to the humanitarian crisis facing Venezuela with a collapse of the health care system and an inability to treat the number of patients presenting to hospital.[10] The government has used the COVID-19 state of emergency to repress dissent, arbitrarily detain and prosecute political opponents, including legislators, journalists, healthcare workers critical of the government’s handling of the pandemic and lawyers providing support to demonstrators.[11] Returnees to Venezuela have been repeatedly stigmatized by the government, being accused of bringing COVID-19 to Venezuela.[12] The Maduro government has accused returning Venezuelans of being ‘bioterrorists’ and as of June 2020, announced that only 400 Venezuelans could return per day, with those caught crossing at informal points being sentenced up to 10 years in prison.[13]
[10] The Lancet, ‘Venezuela is collapsing without COVID-19 vaccines’, 15 May 2021 at
[11] Human Rights Watch, World Report 2021, Events of 2020 at Human Rights Watch, ‘Venezuela: Abusive treatment for returnees’, 13 October 2020 at Organisation of American States, ‘Situation of Venezuelans who have returned and are trying to return to their country in the context of Covid-19’ September 2020 at >
Returnees are required to stay in overcrowded and unsanitary quarantine centres, with little access to food, water or medical care. Those who protest the conditions are threatened with arrests. Due to testing delays, many people have been quarantined for weeks longer than the recommended 14 days. Returnees have described the centres as severely overcrowded with many people sharing a single room, unsanitary, lack of water and electricity to run water pumps and lack of basic supplies needed for hygiene such as soap, in addition to serious difficulties obtaining medical care and food.[14] Returnees are subject to abuse upon arrival back in Venezuela. Authorities and pro-government armed colectivos have threatened, verbally harassed and mistreated returnees.[15]
[14] Human Rights Watch, ‘Venezuela: Abusive treatment for returnees’, 13 October 2020 at
[15] Human Rights Watch, World Report 2021, Events of 2020 at
The Tribunal has accepted that, if he returns to Venezuela now or in the reasonably foreseeable future, the applicant would continue to protest against the current government. The Tribunal finds that any requirement for the applicant to modify his behaviour to avoid harm from further protest activity would require him to alter or conceal his true political beliefs in violation of s.5J(3). The ongoing risks to protestors against the Maduro government include violence and detention by government forces and colectivos. The Tribunal finds that the applicant would face threats to his life and liberty, significant physical harassment and significant physical ill treatment if he is involved in further protests in Venezuela. The Tribunal finds that the harm feared is systematic and discriminatory, having regard to the length of time over which mistreatment of protestors has occurred and the range of harms faced by protestors.
Further, the country information considered by the Tribunal indicates that the applicant faces harm as a returnee to Venezuela, in the form of detention in an overcrowded and unsanitary facility without access to adequate food and water or medical care, and physical and verbal mistreatment by authorities and colectivos. The Tribunal finds that the applicant would face threats to his liberty, significant physical ill treatment and a denial of access to basic services that would threaten his capacity to subsist as a returnee to Venezuela. The Tribunal finds that the harm feared is systematic and is discriminatory towards those attempting to re-enter Venezuela during the COVID-19 pandemic.
The Tribunal finds that the harm feared by the applicant amounts to serious harm as described in s.5J(5) and that the essential and significant reasons for the harm feared are the applicant’s political opinion and membership of the particular social group of returnees to Venezuela. The Tribunal is satisfied that the risk of serious harm exists across all of Venezuela.
The Tribunal finds that the harm the applicant fears is from government authorities and paramilitary forces, colectivos, operating on behalf of the current government. The Venezuelan government has been accused of being complicit in acts amounting to crimes against humanity, and is documented to have cracked down on protestors and tortured detainees. Persistent concerns have been raised about the lack judicial independence within the system. The Tribunal finds that there is no effective state protection available to the applicant from the harm feared.
The Tribunal is satisfied that the applicant has a well-founded fear of persecution for reasons of his political opinion and as a returnee to Venezuela and that he is therefore a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Tamara Hamilton-Noy
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.
…

[2021] AATA 4887

18 October 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction