1925876 (Refugee)

1925876 (Refugee) [2023] AATA 652 (3 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sandra Tempest (MARN: 9682495)
CASE NUMBER:  1925876
COUNTRY OF REFERENCE:                   Ethiopia
MEMBER:Sean Baker
DATE:3 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 03 January 2023 at 4:29pm
CATCHWORDS
REFUGEE – protection visa – Ethiopia – race – Amhara ethnicity – political opinion – father’s political activities – ethnically motivated political violence – particular social group – membership of father’s family – effective state protection – internal relocation – Addis Ababa – reasonableness of relocation – Australian citizen wife and children – no family support in Ethiopia – employment and accommodation – access to health care – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL (2012) 207 FCR 211
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 10 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Ethiopia, applied for the visa on 23 August 2016. The delegate refused to grant the visa on the basis that the delegate found there was not a real chance of being subjected to persecution, nor was there a real risk he would suffer significant harm.
The applicant appeared before the Tribunal on 28 October 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic (Ethiopian) and English languages. The applicant was represented in relation to the review. At the conclusion of the hearing the applicant was given further time to provide submissions.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether there is a real chance the applicant will be persecuted on return to Ethiopia or, if not, whether there is a real risk he will suffer significant harm. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Identity and nationality
The applicant provided a full Ethiopian passport as well as the biodata page of his earlier Ethiopian passport to the Department. On the basis of this information, I accept that the applicant is who he claims to be and is a national of Ethiopia. As did the delegate I accept that s. 36(3) does not apply to the applicant.
I accept that the applicant lived in Gondar Welkait woreda, Amhara region, in the North of Ethiopia. This is his home area.
Claims
The applicant claims that his father was involved in negotiating for the better treatment for the Amhara people of the Gondar area (also spelt Gonder). The Gondar area has historically been a site of conflict between the majority Amhara population and Tigrayans, situated in a disputed area between Amhara and Tigray regions.
In [year], he claims his father was abducted and disappeared for about one year and was tortured. The applicant’s mother was murdered. The applicant was detained and tortured at age 14, and was accused of disseminating anti Government propaganda. He was released at age 16.
The applicant fears persecution due to his Amhara ethnicity, his profile as a young male; and being forced to renounce his ethnicity and join a militia to fight against his own people; and due to his father’s political activities on behalf of the Amhara people.
The applicant arrived in Australia as a dependent on a prospective marriage visa. According to the delegate’s decision, there were significant concerns in relation to the integrity of that visa and the primary visa applicant. The applicant in this case claimed he had had no involvement in that visa application process and the alleged provision of false information. The delegate disbelieved this claim on the basis that the applicant was 19 at the time and attended the Embassy and participated in the interview there with a Departmental Officer. On this basis the delegate was then satisfied that the applicant was fully aware and complicit in providing false information to the Department for the purposes of obtaining a visa to Australia. This then led the delegate to have concerns with the applicant’s overall credibility.
I am not persuaded by this reasoning. It is true that the applicant was not a child at the time of the prospective marriage application, but he was a secondary visa applicant. Further, I am not persuaded by the leap in reasoning present. That is, that the applicant was associated with, but not the primary applicant for a visa with integrity concerns and therefore his general credibility is in doubt. There are many alternative readings of the situation – he may have genuinely held the view that [the primary applicant] was his guardian, even if this was incorrect. He may not have been aware of his genuine family composition. Without further information I am not persuaded that the previous visa application, in which he was only a dependent, can cast any aspersions on the credibility of the applicant.
This view was solidified when I spoke to the applicant at the hearing. The applicant is not naturally loquacious. He did not elaborate on many questions. In my view it is far more likely that this relates to the applicant’s natural tendency to not provide lengthy answers or detail, his background and education. I found the applicant to be a generally credible evidence giver at the hearing.
With that in mind, I have considered the claims of the applicant. I note also that, as below, the claims of the applicant in relation to his past history in Ethiopia are entirely consistent with country information.
Political opinion
The applicant claims to fear harm on the basis of political opinion, and tied to this, as a member of his father’s family.
He claims that his father was actively involved in negotiating better treatment for the Amhara people in and around Gondar. He claims that he has had no contact with his father for approximately ten years. He said that they believe his father has been killed because the last contact he had with his father was sometime after he came here and then they had heard that his father was apprehended from Gondar and had not been heard of since. The applicant claimed to have attended several protests in Australia some years ago but did not claim to have engaged in further protests since.
The country information, including that quoted by the delegate, is broadly supportive of the applicant’s claims.
The country information indicates that, at the time that the applicant was in Ethiopia and the time that he claims his father was politically active and apprehended, there was significant political repression of those expressing a dissenting view from the then government.[1] This reflected the situation largely across Ethiopia prior to Abiy Ahmed coming to power in 2018. The United States Department of State Human Rights Report for 2012 reported restrictions on freedom of expression and association, displacement of hundreds of Amharas and the politically motivated disappearance of two persons in Gondar.[2] Human Rights Watch in their 2012 World Report that ‘Ethiopian authorities continued to severely restrict basic rights of freedom of expression, association, and assembly. Hundreds of Ethiopians in 2011 were arbitrarily arrested and detained and remain at risk of torture and ill-treatment.’[3]
[1] Danish Immigration Service, Ethiopia: Political Situation and Treatment of opposition, 30 September 2018
[2] United States Department of State, Country Reports on Human Rights Practices for 2012.
[3] Human Rights Watch, World Report 2012: Ethiopia, World Report 2012: World Report 2012: Ethiopia | Human Rights Watch (hrw.org)
Amhara protests specifically reflected, amongst other things, grievances over the historical demarcation of the border between Amhara and Tigray regions that resulted in the Tigray regional government administering Amhara land.[4] A 2016 article noted that these tensions had been ongoing for 25 years at that time.[5] Amharas felt they had been marginalised in the political system prior to 2018 and called for political inclusion and economic equality.[6] Gondar was an area of government sponsored riots in May 2018 due to resentment within the government coalition.[7]
[4] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 28 September 2017
[5] ‘Ethnic tensions in Gondar reflect the toxic nature of Ethiopian politics’, The Guardian, 22 December 2016.
[6] Danish Immigration Service, Ethiopia: Political Situation and Treatment of opposition, 30 September 2018, p. 30.
[7] Danish Immigration Service, Ethiopia: Political Situation and Treatment of opposition, 30 September 2018.
An earlier report from 2016 quoted by the delegate, which contained information specifically about the treatment of ethnic Amharas in Gondar:
Amharas are not persecuted because they are Amharas. Rather, Amharas in Bahr Dar, Gonder and some other cities faced very harsh repression this summer because they demonstrated [emphasis in the original]. [Amharas] have been killed because they voiced grievances, because they demonstrated, and not just because they were Amharas.[8]
[8] Ethiopia: Treatment of ethnic Amharas; the All Ethiopian Unity Party (AEUP), including treatment of its members and supporters by authorities (2014-November 2016)’, Immigration and Refugee Board of Canada, 21 November 2016, p. 2,
Currently, the truce agreed between the Federal Government and the Tigray region appears to be holding. The Oromo and Amhara regions have seen attacks by the OLA, targeting Amharas in those regions.[9]
[9] BBC News, ‘Ethiopia’s PM sees OLA rebellion grow in his own backyard’, BBC News, 8 December 2022.
The UNHCR, in a published position on returns to Ethiopia dated March 2022, states:
UNHCR calls on States to suspend the forcible return of nationals and former habitual residents of Ethiopia originating from any areas that are affected by, or which remain fragile and insecure as a result of, military action and/or ensuing displacement, until the situation stabilizes. The bar on forcible return serves as a minimum standard and needs to remain in place, until such time, as the security, rule of law, and human rights situation has significantly improved to permit the safe and dignified return of those determined not to be in need of international protection.[10]
[10] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Ethiopia, March 2022, available at: [accessed 23 December 2022]
Also relevant is the position of the UNHCR that:
In the current circumstances, with ongoing conflict and violence in parts of the country, large-scale internal displacement, and severe humanitarian needs, UNHCR does not consider it appropriate for States to deny persons from Ethiopia international protection on the basis of an internal flight or relocation alternative.[11]
[11] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Ethiopia, March 2022, available at: [accessed 23 December 2022]
Human Rights Watch stated that the cessation of hostilities between the Tigrayan forces and the Federal Government ‘should be an opportunity for international monitoring to prevent further atrocities and a humanitarian catastrophe, and noted that fighting in the Tigray region had heightened fears of further rights abuses and caused large-scale displacement of civilians.’[12]
[12] Human Rights Watch, Ethiopia: Truce Needs Robust Rights Monitoring, 4 November 2022.
The country information is entirely consistent with the claims of the applicant. It is curious then that the delegate disbelieved the applicant, based in large part on their concerns with the applicant’s role in the prospective spouse visa application process.
I accept, given the applicant’s natural reticence and the above country information, that the applicant’s father was detained in 1992 and again in around 2012 when the applicant came to Australia. I am willing to accept that the applicant, as a member of his father’s family, was also detained briefly. I do not accept, nor did the applicant claim, that he had been involved in political activities in Australia.
Ethnicity
As apparent from the country information I have had regard to, some of which is referred to above, ethnicity and political opinion are inextricably linked. Political parties are largely ethnically based, and throughout successive governments there has been a focus on how many persons of particular ethnicities hold power in government positions.[13] This has continued in the Abiy government.
[13] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020.
As DFAT notes:
The security situation has deteriorated in parts of the country since 2018. Inter-ethnic clashes – invariably over land and other resources – have increased significantly, particularly in the West Guji Zone of Oromia State and along the Oromia-Somali, Oromia-Benishangul-Gumuz, and Amhara-Tigray state borders. Inter-ethnic clashes have caused death, the destruction of property and large-scale internal displacement — Ethiopia recorded the most conflict-related internal displacement in the world in 2018 (see Internally-Displaced People). Ethnic militias have proliferated in the states, and weapons are readily available. Addis Ababa has largely been immune from this instability to date.[14]
[14] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020, 2.50.
In 2020, DFAT further reported that ‘Violence based on ethnicity is not common in Addis Ababa, but is a growing concern in regional states. Inter-ethnic relations have deteriorated since 2018, and DFAT assesses the situation for ethnic minorities at the regional state-level is increasingly challenging, and they face a growing risk of violence at the hands of the majority community.’[15]
[15] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020.
Ethnic violence is present in all areas of Ethiopia, but according to the International Crisis Group ‘[a] handful of inter and intra-ethnic flashpoints are particularly worrying. First is friction between the Tigray and the Amhara. The main source is the Amhara’s longstanding claim to the Wolkait and Raya territories that are currently part of Tigray regional state and border Amhara.’[16] The area has witnessed ethnically motivated massacres and attacks dating back many years.[17] Amhara activists in the region have been suppressed when attempting to assert their Amhara identity following the internal boundary redrawing in the 1990s, leading to more recent violent ethnic attacks on Tigrayans in the area.[18]
[16] International Crisis Group: Preventing Further Conflict and Fragmentation in Ethiopia, 19 July 2019
[17] Human Rights Watch, “We Will Erase You from This Land”: Crimes Against Humanity and Ethnic Cleansing in Ethiopia’s Western Tigray Zone, HRW, 6 April 2022, PBS, ‘Ethiopia ‘at a crossroads’ amid spiraling ethnic conflict’, PBS, 4 May 2021, Ethiopia ‘at a crossroads’ amid spiraling ethnic conflict | PBS NewsHour
[18] Human Rights Watch, “We Will Erase You from This Land”: Crimes Against Humanity and Ethnic Cleansing in Ethiopia’s Western Tigray Zone, HRW, 6 April 2022, >
In October 2019 ethnic violence in Addis Ababa left up to 80 people dead.[19]
[19] The Economist, 2 November 2019.
I accept that the applicant is of the Amhara ethnicity. I accept that the applicant’s home area of Gondar is considered an intra-ethnic flashpoint by the ICG.
Will the applicant face a real chance of persecution if returned to Ethiopia?
Gondar
It is clear from the country information that Gondar is an intra-ethnic flashpoint. While the ’permanent cessation of hostilities’ of the civil war between the Federal Government and Tigrayan forces appears to be holding, it is also the case that Ethiopia is still in a post-conflict phase in the region, whilst ethnically motivated violence has flared in Oromia. The country information tends to show that in such an environment, as in the past during periods of conflict, ethnic differences and tensions are heightened, not diminished.

Into this environment, were the applicant to return to his home area of Gondar, I consider that there is a real chance that he would be targeted for harm on the basis of his ethnicity and his actual or imputed political opinion. In reaching this view I have had regard to the fact that the applicant would return having not lived in Gondar for many years. He would return as someone whose family had had involvement with ethno-political action. I have also had regard to the UNHCR position on returns which cautions against return of persons to ‘areas that remain fragile and insecure as a result of military action and/or ensuing displacement, until the situation stabilizes.’[20] Having regard to the country information I am of the view that the situation in Gondar can not be said to have stabilised.
[20] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Ethiopia, March 2022, available at: [accessed 23 December 2022]
I have concluded that it is reasonable to consider that the current situation in his home area, coupled with the factors set out above, would place the applicant at heightened risk of being caught up in ethnically motivated political violence and harmed by Tigrayan remnant forces, Tigrayan groups who have been brutalised by the Amhara militas in Gondar, or others, now or in the reasonably foreseeable future if he returned to his home area.
I have had regard to whether the applicant can access effective protection in Gondar. I find that he can not. As above, the border areas between Tigray and Amhara are contested areas. They are not under the effective control of government forces.[21] While it can be argued that the Ethiopian government may provide the elements required for effective protection, I find that the applicant cannot access this protection in the border areas between Amhara and Tigray. I find that the applicant cannot access effective protection in his home area.
[21] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020, 2.59.
I find that such harm the applicant would suffer would be for the essential and significant reason of his ethnicity, his actual or imputed political opinion and his membership of his father’s family. I find that it would involve serious harm to the applicant, including death or serious injury as a victim of such ethno-political violence, and would be systematic and discriminatory in that the reports of violence in these areas make clear that persons such as the applicant are targeted for their ethnicity and political opinion. There are no modifications the applicant could make to his ethnicity, actual or imputed political opinion or membership of a particular social group of his family that would not be protected characteristics.
Addis Ababa
I am required to consider whether the real chance of persecution relates to all areas of the receiving country.
I have had regard to the UNHCR position that internal flight alternative should not occur for the reasons stated above. However, the legislated requirement is for the persecution to extend to all areas.
Having regard to the country information before me, it is clear that Addis Ababa remains largely stable, although I note that there have still been instances of ethnic violence there. These have been few however, and sporadic.
I have had regard to whether there is safe human habitation and to which safe access is lawfully possible to Addis Ababa.[22] Patently it is. The country information indicates that Addis Ababa is safe for human habitation and safe access is available, particularly as the applicant would presumably be arriving by air to Addis Ababa Bole airport.
[22] FCS17 v MHA (2020) 276 FCR 644.
Having carefully considered the information before me I find that the applicant could safely live and access Addis Ababa and that there is not a real chance, that is one that is not remote, that he would be harmed for reasons of his ethnicity, actual or imputed political opinion or his membership of his father’s family in Addis Ababa. The applicant therefore does not have a well founded fear of persecution as that term is defined in s. 5J(1).
Will the applicant suffer significant harm if he is removed from Australia to Ethiopia?
I have therefore turned to consider whether there is a real risk the applicant will suffer significant harm if he is removed from Australia to Ethiopia.
As above, I have found that there is a real chance the applicant will suffer serious harm on return to Gondar in the reasonably foreseeable future. I find therefore that there is a real risk, equivalent to a real chance, of this occurring. The harm of which there is a real risk is death or injury which would be inflicted intentionally by Tigrayan remnant forces or other Tigrayan elements targeting the applicant as an Amhara, and as such would constitute a defined form of significant harm, either arbitrary deprivation of life, or acts that would constitute cruel or degrading treatment or punishment.
Such harm would not apply to all persons in Gondar, but would be directed towards the applicant because of his ethnicity and political opinion, and as such would not be generalised.
Under s 36(2B), there is taken not to be a real risk of significant harm if 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’. As above, I have found that the protection of the authorities would not accessible for the applicant in the area of Gondar, and would not reduce the risk to less than a real risk: MIAC v MZYYL (2012) 207 FCR 211.
I find therefore that there is a real risk the applicant would suffer significant harm if he is removed from Australia to Gondar.
I have considered if the applicant can relocate to Addis Ababa. As above, I have found that Addis Ababa remains largely stable, although I note that there have still been instances of ethnic violence there. I have found that Addis Ababa is safe for human habitation and safe access is available.
However, it must also 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’: s 36(2B)(a).
I find for the following reasons that it is not reasonable, in the sense of practicable, for the applicant to relocate to Addis Ababa.
Relocation
I spoke at length with the applicant about his personal circumstances and whether he would be able to relocate to Addis Ababa. In this regard he explained that he is married and has [number] children, all of whom are Australian citizens. He told me that his wife is of Ethiopian background but was born in [Country 1] where her family had been displaced. She travelled to Australia on a humanitarian visa. She has not ever lived in Ethiopia. His children are approximately [age] and [age]. He has no family in Ethiopia as far as he is aware, his father being missing presumed killed, his mother having been killed, and his brother and sister living in Australia. The applicant also said that he had heard the Addis was very dangerous for women in particular, children are not able to access a normal vaccination program and poverty is very high compared to Australia. The applicant and his wife have been working in Australia and they both speak Amharic.
I have carefully weighed these factors. I accept that the applicant would return with his wife and young children. I accept that they would have no family support in Addis, which is noted as a barrier to internal relocation by DFAT.[23] I accept that access to vaccinations and other health services for the applicants young children would be significantly impacted. I note also that after the Tigrayan conflict many IDPs have travelled to Addis. It is unclear from the information I have been able to obtain whether, at present, the applicant would be able to find work and accommodation for himself and his young family given the IDP situation and the post conflict environment.
[23] Department of Foreign Affairs and Trade, Country Information Report Ethiopia, 12 August 2020, 5.31.
Lastly, I have had regard to, and place weight on the UNHCR position that it is not appropriate for the above reasons for a person to relocate in Ethiopia. Although this position was arrived at last year, prior to the ending of hostilities, I consider this still to be relevant, given the fighting has only recently ended, that IDPs if anything have increased, that there is increased fighting in Oromia, and that the post conflict environment is, according to information before me, increasingly ethnically charged.
In the present case, weighing these factors, I find that it is not reasonable for the applicant to relocate, with his young family, to Addis Ababa, where I cannot find with certainty that he could find employment and accommodation to support them, and where his young children may be unable to access medical treatment and care including vaccinations.
Therefore, there is a real risk the applicant would suffer significant harm if he is removed from Australia to Ethiopia now or in the reasonably foreseeable future.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant 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 the criterion in s 36(2).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Sean Baker
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 652

3 January 2023

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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Jurisdiction