1923439 (Refugee)

1923439 (Refugee) [2022] AATA 3631 (4 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Liz Hug (MARN: 0316123)
CASE NUMBER:  1923439
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Ann Duffield
DATE:4 August 2022
PLACE OF DECISION:  Canberra
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)The first and second named applicants satisfy s.36(2)(a) of the Migration Act; and
(ii)The third named applicant satisfies s.36(2)(b)(i) of the Migration Act on the basis of their membership of the same family unit as the first and second named applicants.

Statement made on 04 August 2022 at 1:56pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – religion – conversion to Christianity – sporadic and violent attacks on Christian converts – disowned by respective families – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5LA, 36, 65
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 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 15 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Bangladesh applied for the visas on 28 February 2019. The delegate refused to grant the visas on the basis that they were not people to whom Australia had protection obligations.
The applicants appeared before the Tribunal on 3 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the [Reverend B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.
The applicants were represented in relation to the review and the representative was present at 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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicants have a well-founded fear of persecution by reason of their conversion to Christianity should they return to Bangladesh. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity and nationality
The delegate’s decision notes that all the applicants have provided copies of their passports which include biometrics. There is no suggestion that the applicants are anyone other than whom they claim to be. On the information before me and with no information to the contrary I accept that the applicants re who they claim to be and that they have no rights of entry or residence in any third country. Their claims have therefore been assessed against Bangladesh as the receiving country.
Claims and Evidence
The applicants provided the Tribunal with a copy of the delegate’s decision. The Tribunal has also listened to the recorded interview between the delegate and the applicants.
For the purposes of the written decision and to assist in identifying which of the applicant’s evidence is being referred to the Tribunal they will be identified as Mr A and Mrs A.
The applicants’ claims for protection, including those raised at interview, are contained in the department’s file and in their submissions to the Tribunal. Their claims are summarised below.
The primary applicant arrived in Australia on a student visa in June 2007 and remained on several valid visas after that time. The secondary applicant (his wife) arrived in March 2009. Both applicants remained validly in Australia until their UC-457 visa was cancelled in September 2016 as they no longer had an approved employer. They pursued several avenues of appeal against that cancellation and received an FCC outcome dismissing their appeal in February 2019. They lodged a protection visa application on 28 February 2019. They have remained lawful during their entire stay.
Mrs A was sponsored to Australia by Mr A as his wife in March 2009. From the time she arrived she states that she noticed how people were different and there were other religions. She says that she came from a strict Muslim family and her marriage was arranged. She was taught that only Muslim was a religion of true faith. As she got to know other people and was exposed to other religions, she realised that the strictness of Islam bothered her a lot. She was told that she had to follow all the rules and regulations and fear God otherwise she would go to hell. She claims it took her a while to decide to convert and it was around 2015 that she decided that she could leave Islam and become part of the Christian community.
Mrs A told the tribunal that in around 2017 they went to [Church 1] for help because the family was destitute. She said that they met [Father B] and got to know others in the community who were very kind to them and helped them. She said that they approached the Mosque for help but did not receive anything from them at all.
Over the course of two years Mrs A said that she already thought of herself as a Christian. She was not aware that something like a formal conversion was possible. She said that she had received a Bengali language bible from a friend and came to understand that she could become baptised. She said she immediately knew that’s what she wanted. She was finally baptised by [Father B] in April 2019.
Mrs A told the Tribunal that she took a long time to tell members of her family that she had converted as they were very conservative Muslims and wouldn’t accept her choice. She said that she finally told her father who immediately expelled her from the family. She has not spoken to him since. She said that he believes that he will go to hell because he did not raise a good Muslim daughter. She remains in touch with her mother who is still reluctant to speak to her and still is very opposed to her conversion. Mrs A says she cannot return to Bangladesh and stay with her family because they have rejected her and her children.
The Tribunal asked Mrs A why she believed that she would be identified and harmed because she had converted to Christianity, if she returned to Bangladesh.
In a convincing and passionate response, Mrs A told the Tribunal that her way of practicing her Christian faith is loving people more and taking care of people who know her and to tell everyone about the love of Christ. She said that she felt that she needed to tell everyone who Jesus Christ is and that he is love. She said that both she and Mr A are heavily involved in the Church’s community work and volunteering. She says they help with taking food to hospital and to others who cannot shop for themselves. She said that every week she takes food to an elderly member of her community because she lives in the country and cannot drive. She also takes her to doctor’s appointments. Mrs A said that her husband also helped in several the church’s affiliated organisations including distributing food.
She said that if they returned to Bangladesh everyone would know they were Christians because they would not stop going to church. Mrs A said “I don’t think its right to hide my love for Christ and why shouldn’t I tell them – I need to be honest to my promise to God.” The Tribunal puts significant weight on Mrs A’s conviction.
Mrs A said that even though 90% of the people in Bangladesh were Muslim she did not believe that they would all be against her. She said that most Muslims would probably accept even though it was against the law of Sharia. However, she said that she was very scared about the minority of Muslims that believe the law of apostasy in that converts to Christianity must be killed. She was also afraid for her young children who could be taken from her and forcibly converted to Islam or even raped and killed.
Mrs A states that if she and her family are returned to Bangladesh they will be in danger and her parents will also be “thrown out from the society, the Muslim community will burn their house and they can also be killed”. She claims that her child’s life will also be in danger and they will be forced to give up their new Christian beliefs. She states that as a woman she will have no say and will be killed or a victim of rape because she is woman and westernised.
Mr M states that he converted to Christianity and was baptised into the church in April 2019. He indicates that he approached the Church at [Church 1] in [City 1] in around June 2017 to seek assistance in finding food and accommodation because he and his family were destitute. He states that he was impressed with how good the people were to him and his family and began to engage with [Father B] and other Christians about Jesus and the teachings of the church. The primary applicant states that because of his conversion his afraid for his life and that of his family. He claims that Christians are being persecuted and raped and killed in Bangladesh.
In his oral evidence to the Tribunal Mr A provided consistent and persuasive evidence of his path of conversion to the Christian faith. He told of how he was influenced by his wife Mrs A to get more involved with the Church and community. He saw that she was committed to Christianity from around 2015 and he went to speak with [Father B] at [Church 1]. He told the Tribunal that [Father B] would not at first accept him into the church until he learnt more about Jesus and Christianity and questioned himself and thought more about it. He and [Father B] both told the Tribunal that it took several years of instruction, participation in the church community and attendance before [Father B] would finally baptise him in 2019.
The Tribunal asked Mr A how he thought he would be identified as a Christian and persecuted as a convert if he returned to Bangladesh. Mr A said that he had talked to relatives and family friends in Bangladesh, and everybody told him that coming back as a converted Christian would be very dangerous for them and they would be killed. He said that Mrs A needed to talk about her faith. Asked if he also felt that need, he said that he doesn’t want to hide. He said he couldn’t go back to his family in Bangladesh because they are very poor and have turned their back on him.
The Tribunal questioned the parties about whether they could find a Christian community in which they could feel safe and they said they did not know as Christian converts were not safe anywhere in Bangladesh. The Tribunal asked [Father B] if he was aware of any Christian communities where the applicants could be safe, and he told me that he had tried to get some information, but it was not easy as nobody spoke English. He said that the Anglican church in Bangladesh had amalgamated with other protestant faiths. He said he did not believe that they could be safe in Bangladesh. [Father B] said that Mr and Mrs A are on a journey from which they cannot turn back.
DFAT Country information Report Bangladesh 22 August 2019 [3.27 – 3.36]
Religion
Bangladesh is a majority Muslim country, with Hindu, Buddhist, Christian, and indigenous religious minorities. The CIA World Factbook reports that around 89 per cent of the population is Muslim. Muslims are almost entirely Sunni, although small Shi’a and Ahmadi minorities exist. About ten per cent of the population is Hindu. The remaining 1 per cent of the population are from other religions, mostly Buddhism and Christianity (both Catholic and Protestant), which are especially prevalent amongst Indigenous people.
Religious minorities reside throughout the country in small numbers. The Constitution holds that Islam is the state religion but commits the state to ensuring equal status and equal rights for all religion, and specifically mentions Hinduism, Buddhism and Christianity. The Constitution also commits the state to upholding secularism by not granting political status in favour of any religion, by prohibiting the abuse of religion for political purposes, and by prohibiting discrimination or persecution of persons protecting any religion. It provides for the right to profess, practise, or propagate all religions ‘subject to law, public order, and morality’, and states religious communities or denominations have the right to establish, maintain and manage their religious institutions. The Constitution stipulates that no one attending any educational institution shall be required to receive instruction in, or participate in ceremonies or worship pertaining to, a religion to which they do not belong.
Religious Conversion
There are no laws prohibiting religious conversion in Bangladesh. DFAT assesses that individuals converting from Islam to another religion (generally Christianity) are more likely to face societal pressure than are individuals converting to Islam. Rumours that Christian churches are seeking to convert Muslims have occasionally led to localised violence against Christian individuals and institutions. In separate incidents in early 2016, Islamist militants murdered Christian converts in Jhenaidah, west of Dhaka, and in Kurigram, northern Bangladesh.
NGOs and the domestic media have reported that Islamist groups have forcibly converted non-Muslim indigenous children in the CHT and other rural areas. The reports allege that the groups convince parents to relinquish custody of their children by claiming they will provide the children with a higher quality of education and lifestyle in Dhaka and other developed cities. The groups instead forcibly convert the children to Islam and place them in madrassahs without their parents’ knowledge or consent. In January 2017, police in Bandarban (in the CHT) arrested two men for the alleged trafficking of four children aged between nine and DFAT assesses that the claims of forced conversion are credible.
DFAT assesses that the risk associated with conversion from Islam to Christianity varies according to individual circumstances, particularly when such risk is associated with family objections. Indigenous people who convert often do so in the context of community conversions, which carries a lower risk because Christian organisations are likely to integrate themselves into the communities providing schools, healthcare or other facilities (see also Christians). A lone convert in a smaller community would be likely to face a greater risk.
Christians
Christianity first arrived in Bangladesh in the 15th century with Portuguese traders. Bangladesh has historically hosted three distinct Christian groups: the descendants of those converted by the Portuguese, who are predominantly Catholic; the descendants of those converted during the British era, who are predominantly Protestant; and indigenous peoples who converted en masse both before and after independence. With many of the first two groups emigrating from Bangladesh in recent decades, the third group now comprises the majority of Bangladeshi Christians. Christians living in and around Dhaka are not easily distinguishable from other Bengalis, although many Catholics have identifiable surnames (often of Portuguese origin). Information about people that convert to Christianity is provided in Religious Conversion.
No legal or other restrictions prevent Christians from freely practising their faith, and Christians are entitled to equal treatment under the Constitution. Christians are able to access state schools, hospitals and other services. Christians have made a significant contribution to public life, particularly in relation to social welfare – a legacy of historical and continuing missionary efforts. The Christian education system, which operates throughout the country from primary to tertiary levels and is open to all faiths, is held in high regard by the communities in which Christian schools and universities operate. This provides Christians with some degree of protection against harassment at the local level.
As noted in Chittagong Hill Tracts (CHT) indigenous people and Buddhists, ethnic and religious issues frequently overlap in the CHT. Disputes between predominantly Muslim Bengali settlers and indigenous groups from minority religions (including Christians) occur frequently, particularly over land ownership and usage. While some of these disputes may take on religious overtones, DFAT assesses that in most cases religion is a contributing factor rather than a causative one. Rumours that churches are seeking to convert Muslims, local tensions over interfaith relationships, and news of US-led military activities in or against Muslim countries have all occasionally led to threats against Christian individuals and institutions. Opposition party activists targeted Christian (and other minority) communities before and after the January 2014 parliamentary elections because of their perceived political affiliation with the AL.

The small-scale localised attacks carried out by Islamist militant groups against minority religious and social groups across the country in 2013-16 killed or seriously injured several Christians. Authorities despatched police to protect churches and clergy in response to the attacks, and in response to death threats made by militants. Isolated attacks and threats by militants against Christians continue to be reported, but these claims sometimes lack credibility. For example, in December 2017 a Catholic priest was reported to have been abducted in the northeast, subsequently turned up alive in Sylhet after claiming to have escaped his kidnappers. At a subsequent press conference, police accused the priest of staging the kidnapping, claiming to have CCTV footage of him checking into hotels and riding his own motorcycle during his absence.
DFAT assesses that Christians face a low risk of societal violence in the form of occasional localised incidents. This risk is higher for Christians who convert from Islam in the context of a lone conversion without the support of their community or family, but the extent of the risk would then depend on individual circumstances. Like other minorities, Christians may face a risk of sporadic attacks from Islamist militants.
Findings and Reasons
The applicants claim that they have a well-founded (and subjective) fear of persecution if they return to Bangladesh because they have converted from Islam to Christianity. They and their two young children have been baptised into the Anglican church and they are active participants in the Church community. They fear that they and their children will suffer serious harm physically, including rape, or being killed by conservative Muslims. They fear that they will have nowhere to live if they return as their families have disowned them. They fear that it doesn’t matter where they go in Bangladesh they will be identified as Christians by virtue of their behaviour including by telling people of their beliefs and attending church. They claim that they cannot get effective state protection from the harm they fear and cannot relocate elsewhere in their country because it will become known that they are Christian converts.
Claims of converting to Christianity
The Tribunal accepts that both applicants were practising Muslims at the time they arrived in Australia. The Tribunal accepts that their conversion to Christianity is genuine and was a journey of faith taken over several years culminating in the baptism of themselves and their children in 2019.
The parties attend Church every week and contribute their time and energies into several church activities. Mrs A is outspoken about her faith and the Tribunal accepts that this is a manifestation of her faith and not an empty claim to enhance her protection application. The Tribunal accepts that the applicants’ conversion to Christianity was not for the purposes of strengthening or making a claim for protection. Their evidence in this regard has been consistent and compelling and the pastor of their church has provided consistent and strong support to the department and the Tribunal in this regard over several years.
Return to safety in Bangladesh
The country information consulted by the Tribunal and provided by the applicants does indicate that there are no laws against religious conversion in Bangladesh, however, there have been sporadic and violent attacks on Christian converts by more conservative and radical Muslim groups in Bangladesh in defiance of the laws. Whilst there is no law against conversion in Bangladesh many conservative and radical groups still use the law of apostasy as justification for killing those who abandon Islam.
Both applicants have been disowned by the families and they claim that they could not return to their family homes. Country information indicates it would be difficult for them to relocate elsewhere and be safe without family support. They would have difficulty finding work to support themselves and their children and have no savings to draw upon. Importantly, given Mrs A’s evidence that she would feel compelled to tell of her faith and conversion, a finding that they would face significant harm upon return to Bangladesh is not farfetched.
Having regard to all the information before it, the Tribunal finds that if the applicants were to return to Bangladesh as Christian converts with their children, they face a real chance of persecution amounting to serious harm, including societal violence or death. The Tribunal is satisfied that the harm the applicants fear involves serious harm as defined by paragraph 5J(4)(b) of the Migration Act and that the applicants’ fear involves system and discriminatory conduct.
The Tribunal is satisfied that religion is the essential and significant reason for the persecution which the applicants fear as required by paragraph 5J(4)(a),.
The Tribunal is not satisfied that the applicants can relocate to avoid the harm they fear as in the Tribunal’s view, supported by the evidence, the risk of this harm exists across Bangladesh.
The Tribunal accepts that here is no law against conversion in Bangladesh and they would therefore not face charges from the State. However, the extent to which the authorities could provide protection to the applicants from conservative or radical groups is remote. The Tribunal is not satisfied that there is effective protection available to the applicants in Bangladesh for he purposes of Section 5LA.
CONCLUSION
For the reasons given above the Tribunal is satisfied that the first and second named applicants are person in respect of whom Australia has protection obligations. Therefore, they satisfy the criterion set out in s.36(2)(a).
The Tribunal is satisfied that the third named application, who is the child of the first and second named applications is a member of the same family unit as the first and second named applications for the purposes of s.36(2)(b)(i) of the Act. As such, the fate of their application depends on the outcome of their parent’s application. It follows that the third named applicant will be entitled to a protection visa provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
i)The first and second named applicants satisfy s.36(2)(a) of the Migration Act; and
ii)The third named applicant satisfies s.36(2)(b)(i) of the Migration Act on the basis of their membership of the same family unit as the first and second named applicants.
Ann Duffield
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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[2022] AATA 3631

4 August 2022

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Remedies

Statutory Construction