1930315 (Refugee)

1930315 (Refugee) [2024] AATA 1314 (16 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Cassandra Benjamin
CASE NUMBER:  1930315
COUNTRY OF REFERENCE:                   New Zealand
MEMBER:Nora Lamont
DATE:16 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(b)(i)of the Migration Act; on the basis of membership of the same family unit and;
(ii)the Tribunal does not have jurisdiction in relation to the second and third named applicants.

Statement made on 16 January 2024 at 9:54am
CATCHWORDS
REFUGEE – protection visa – New Zealand – particular social group – applicant’s mother is a single mother – abused woman – applicant is child with disability – no male protection – ex-husband’s family’s political and police connections – unable to relocate in India – member of same family unit – Australian citizenship granted to second and third applicant children – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 April 2018 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 New Zealand, applied for the visas on 31 July 2017.
The applicants were represented in relation to the review.
This is a separate application for [Daughter 1] the applicant’s daughter ([Mother 1] file number 1812445), with an identical department decision. Initially, all three children were on the application but two of the children have since become Australian citizens and have been withdrawn from the application. The children were not correctly notified of the initial decision. This was following the full court (FFC) judgment in the matter DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17) which was handed down on 18 April 2019.
The Department re-notified the primary review applicant in 1812445 (the current review applicants’ mother), and the dependents were notified separately. At the Tribunal hearing the primary applicant’s mother [Mother 1] gave evidence on behalf of her daughter’s separate application. Whilst the Tribunal notes that the applicant holds New Zealand citizenship her mother does not and as a minor the Tribunal has considered the applicant would go with her mother to India not New Zealand should she be returned.
The issues in this review is whether the applicant has a well founded fear of being persecuted for one or more of the five reasons set out in s5J(1) and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed to her receiving country of India, there is a real risk that she will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be remitted.
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 applicant’s claims are shared with her mother (due to her being a child at the time of application) and are summarised by the delegate in the decision record dated 23 April 2018 and are as follows: [1]
[1] [File number]
·The applicant fears that if she is returned to India she will be seriously harmed or killed by her ex-partner[and] his relatives. She also fears that her children, will face the same harm.
·She fears the Indian authorities will not protect them from the harm they fear and that there would be nowhere in India for them to relocate, particularly as the applicant is a single mother.
·The applicant was born [in] the state of Punjab. She comes from a middle-class family. Her father is [an occupation] who mostly resides in [Country 1] and returns often to India. Her mother is a housewife, and she has one brother.
·The applicant received education up to the end of year 12 and began a [course] which did not complete because she got married.
·Her marriage was arranged through relatives, and she was introduced to her husband in December 2008. They got engaged and were married in February 2009. After the couple were married in India, the applicant returned to New Zealand with her husband and his family, as they were New Zealand citizens and resided there.
- The applicant asserts that the first year of marriage was okay, however, following that year she began experiencing physical and verbal abuse at the hands of her husband. At times he would force her to work on the farm, but most of the time she was a housewife and would spend her time cooking and cleaning for his family. She adds that she was treated poorly by his family.
·At the end of 2009, the applicant fell pregnant with her first daughter, during which time the applicant continued to sustain abuse at the hands of her husband. This worsened when it was revealed that the applicant was expecting a girl child, as none of her husband's family wanted a female child.
·In 2011, the entire family moved to Australia, as the applicant claims her husband's father had committed some fraud with the government in New Zealand. The family moved to a [farm] they owned in [a town] and the applicant asserts that she continued to be abused by her husband and treated poorly by his family.
·The abuse worsened with the birth of the couple's second daughter and in 2013, when the applicant gave birth to a son, she thought the situation would improve, but to no avail. Following the birth of their son, the couple moved to [another town] with their children.
·The abuse the applicant suffered at the hands of her husband was not only physical, and verbal, but also financial. He withheld money from her and would not let her earn a living. She had to beg him for food for her and the children or otherwise they were forced to survive on lentils, or she would have to borrow money.
·The applicant was frequently threatened with death and the cancellation of her visa, with her husband scaring her with a gun he owned. He would threaten her that if she could not kill her in Australia, he would kill her in India.
·The applicant claims that in February 2017, she called the police after her husband beat her. The police did not take a statement from the applicant but told her husband to leave the house and referred the applicant to [an organisation] for further assistance. The applicant was referred by [the organisation] to Child Protection, who were able to refer the matter to court, where the applicant gave a statement against her husband.
·Her husband kept trying to force the applicant to withdraw her statement.
·On one occasion, he left the gas on when the applicant and the children were alone in the home, but the applicant smelt the gas, turned off the stove, took the children and left the home before anything could happen.
·The applicant separated from her husband in June 2017, leaving with the children for fear of her husband. The applicants have been living in crisis accommodation since the separation. She attended court in June and July 2017 and received an IVO against her husband. The children have supervised visits with their father. However, there has been no contact between the applicant and her husband or his family members since she left.
·The applicant claims the children are not Indian citizens, however, if they were allowed to go there, she fears for their safety. She has two daughters, whom she is particularly frightened might be raped if they were to return to India. She is fearful all three children could be raped. In addition, she does not want to return to India for fear of what has happened in Australia to happen in India.
·The applicant adds that she has no work experience and no qualifications, and she is scared of the future of her daughters as a single mother. She has no money and no way to support them. As her family belongs to the middle class, they would also not be able to support the applicant should she return to India. The applicant fears she would become homeless and destitute should she return to India.
- The applicant fears for her children's safety if they are returned to New Zealand. She has no rights to live in New Zealand with them and they would be all alone. There is every chance that her husband may return to New Zealand to live, and he still has many family members and friends who live there, therefore it would not be safe. The applicant does not believe that the authorities could protect her children and she would not be able to be there to look after them. Her husband and his family are really dangerous, and they would not be deterred by the police.
Tribunal Hearing
The applicants’ mother stated her brother lives in [another country] and has been there for several years. Her mother remains in India, although she is currently in Australia on a visitor’s visa. Her father is [an occupation] and works in [Country 1]. He goes back to India a few months each year. She completed high school and then stayed home with her mother.
In 2009 she married her husband. She told the Tribunal that it was an arranged marriage, and they knew her husband through a family friend. Her husband had been living with his family in New Zealand so after the wedding he returned to New Zealand, and she stayed in India for a few months before joining him there. When she arrived in New Zealand she lived with her husband, his parents, grandfather, sister-in-law, brother-in-law, and a cousin. She said she stayed home and did the cooking and all the household work. Her husband was working on a farm fruit picking. Sometimes she would accompany her mother-in-law to the farm to work. At the beginning her mother-in-law was nice but everything changed after about one year.
Her husband became violent towards her, and he would be violent in front of the family. No one did anything. When asked if she was able to tell her mother, she said divorce is taboo in India and besides that fact, her mother was in India. She lived in New Zealand for about two years and then the family was involved in some fraudulent activity, and they all moved to Australia (except the grandfather). The family bought their own [farm], and she was trapped. She became pregnant with a girl and her mother-in-law was angry that she was having a girl.
In 2013 the family moved to Melbourne. She was so frightened of her husband that she called the police on two occasions. In 2017 the applicant’s husband left the gas on while she and her children were in the house, and she had enough. She left her husband. She called the police and child protection. In June of 2017 she was living in different motels. The last time she heard from her ex-husband (they are now divorced) was in 2018 or 2019. In 2021 his family tried to contact her mother and her mother was scared. Divorce is taboo in their culture.
The applicants’ mother said her daughter [Daughter 1] does not speak as her husband used to hit her in front of [Daughter 1] and hit her while she was pregnant with her.
The applicants’ mother said she cannot return to India as she cannot live there as a divorced single mother, and her ex-husband’s family have police links and are politically connected. She would be required to have a background check if she moved to another village and her ex-husband’s family would go to the police and they are corrupt.
Current country information from DFAT indicates a patriarchal society and a culture of violence and harassment against women. [2]
[2] DFAT Country Information Report India September 2023.
Women
3.114 Significant parts of Indian society remain conservative and patriarchal, intersecting with rural/urban divide, caste, religion and socioeconomic status. Social interaction, and particularly displays of affection, between unrelated members of the opposite sex is far less common than in Australia and taboo in some contexts. Some functions in society that could otherwise lead to physical proximity between sexes (such as queues or public transport) are segregated; this is typically intended to preserve women’s dignity. Girls are often traditionally valued less than boys, and women in poor households may experience less access to food, education resources or sanitation facilities than male members of the household.
3.115 There are signs of progress and reform, and women are becoming increasingly visible and assertive, particularly among younger generations. For example, the gap between the number of women versus the number of men voting in elections has closed, and more women than men voted for the first time in the 2019 federal election. Many universities are seeing increased female enrolment, and some have more female than male students. Political parties are recognising the need for social policies that serve and include women.
3.116 While women as a group tend to be disadvantaged in society, caste and wealth tend to play significant roles. For example, sources told DFAT that support for women’s equality was often higher among privileged, upper-caste Hindus compared to other castes.
3.117 Given high levels of diversity and the sheer size of the population, it is difficult to give an overall assessment on women in India. Generally speaking, and noting the below subsections, women experience a low risk of official discrimination and a moderate risk of societal discrimination and violence.
Violence against women
3.118 Women experience sexual harassment and violence in the street. While the practice is sometimes known as ‘eve teasing,’ that term is reductive: the ‘teasing’ can involve serious sexual assault or homicide. There have been several high-profile cases of public rape in recent years. Occurrences of harassment or violence towards women may stem from attitudes that women are ‘asking for it’ because of their clothing or because they are in public unaccompanied by a male family member, for example.
3.119 Some women report feeling unsafe using public transport to get to work, which can act as an economic barrier, either because of their own fears or because male members of the household will not allow them to go out to work because of fear of violence. Similarly, fear of violence can act as a barrier to women enjoying public spaces for leisure or social activities.
3.120 A 2020 report by Human Rights Watch informed by interviews with Indian women found that sexual harassment and assault was a daily problem for many women in the workplace. Women from lower socio-economic environments reported that it is better to ‘just ignore’ harassment, which many consider ‘trivial’, because of fears of loss of jobs or income. The 2020 Human Rights Watch report, and others, have found that sexual harassment laws were not well-enforced or not well understood either by victims or police.
3.121 One of the most well-known incidents of violence occurred in 2012 when Jyoti Singh was gang raped in a private bus and left for dead after she went to a movie with an unrelated male. She later died from extensive injuries. Massive protests over violence against women followed. The incident is seen by activists as a turning point for the women’s rights movement in India, as it brought attention to the issue of violence against women in a way that previous incidents had not. Four men were sentenced to death following nationwide outrage over the Singh case, however such sentencing should not be considered to be reflective of normal practice.
3.122 Violence against women is a cultural phenomenon on which views are not necessarily divided along gender lines. For example, a social media video about a violent group assault in which a woman had her hair cut off and face painted black before being paraded in front of and assaulted by crowds went viral in January 2022. Many in the crowd who were abusing the victim were women, calling for the victim to be raped (which later occurred), illustrating how deeply culturally entrenched gender-based attitudes are in India. The video caused nationwide outrage, including against the women in the crowd. Twelve people, including eight women, were arrested in connection with the rape and assault of the victim.
3.123 Traditional social practices and the low status of women in many parts of India are linked to domestic and gender-based violence. Child marriage is illegal but continues, particularly in rural India. The illegal yet common tradition of a bride’s family needing to pay a dowry can lead to female infanticide, sex-selective abortions and dowry-related harassment and deaths (women murdered or driven to suicide in response to the attempt to extort a higher dowry). Available data likely understates the true extent of violence against women due to underreporting of cases.
3.124 ‘Honour killings’ occur when families feel that the honour of their family is jeopardised, often where a woman’s virginity or ‘marriageability’ is ‘lost’, for example. Such violence may also occur when women seek to divorce or separate from an abusive husband. Honour killings can occur regardless of age, religion, social status, wealth or other factors – the risk is particular to each individual victim and their families.
3.125 Acid attacks are a subset of ‘honour’ violence that includes assaults or homicides in which acid is thrown on a person over issues of perceived shame or honour, unrequited love or rebuffed marriage demands or dowry disputes. Both men and women can be victims, but the crime is more commonly targeted at women. Survivors can experience life-long disfigurement and sometimes pain and disability. It is difficult to comment on the prevalence of the crime; attacks are likely underreported, and some sources suggest the number of attacks might be growing, with perhaps two or three hundred reported attacks a year.
State protection for women
3.126 The Protection of Women from Domestic Violence Act 2005 (PWDVA) was enacted to provide more effective protection for female victims of any kind of violence occurring within the family, including physical, verbal, emotional, economic and sexual violence. The PWDVA defines domestic violence as any act, omission or commission or conduct of the respondent, which includes threat or actual abuse. In practice, cultural factors prevent women from reporting violence and police may not be effective in providing state protection (see Police), and may take no action or may encourage the parties to reconcile. Marital rape is not a crime in India, a matter being considered by the Supreme Court as at the time of publication.
3.127 There are women’s police desks and women’s police stations where women can report violence. These include ‘one stop’ centres throughout the country that are designed to offer a range of services to victims (legal, accommodation or medical services, for example) in addition to police assistance. These do not necessarily mean that protection is available (or even that a women’s police station will be staffed by a female officer), or that reports will be actioned by police effectively. Sources told DFAT that police sometimes tell couples to reconcile after violence and will not take any further action.
3.128 Media reports and some initial academic studies point to greater rates of domestic violence during COVID-19 lockdowns based on increased calls for help to domestic violence hotlines. Support workers told Indian media outlets that victims were trapped inside with their abusers. Many women did not report abuse because of privacy concerns or fears that things would get worse if they complained, according to activists who spoke to Indian online newspaper, The Print, in February 2021.
3.129 The PWDVA requires states to provide shelters, counselling services and legal aid to survivors of domestic violence; however, in practice the quality and availability of services are limited. Some shelters are relatively good, however others are overcrowded and unhygienic. A 2017 report by NGO Open Democracy described conditions as ‘unhygienic’ and ‘jail-like’. The same report points to stigma with residents sometimes seen as ‘immoral’ or ‘deviant’. One source told DFAT that shelters are a ‘place of neglect and misery’, and mentioned the use of ‘psychiatric medicines’ on residents without consent.
3.130 According to media reports from 2018, some shelters in Delhi and Bihar were investigated for their poor conditions. Allegations included claims that women were subjected to forced abortions, locked up without access to exercise and fresh air and in some cases raped. The allegations were investigated and senior government officials admitted that there may be more cases than initially reported. Whether or not conditions improved as a result of investigations is not clear.
3.131 Violence against women is a significant problem in India and state protection is often inadequate. Sources told DFAT that police commonly refuse to register cases or investigate claims of violence, including violence that results in grievous bodily harm or death. DFAT assesses violence against women is common, and depends on several factors, including the family of the woman. Violence against women affects women of all socio-economic, caste and language distinctions. DFAT assesses that women experience a moderate risk of sexual harassment and assault in their day-to-day lives.
Single women
3.132 Being (and remaining) a single woman in India is difficult and relatively uncommon. Marriage is a central feature of social lives and, without a husband (see Sexual Orientation and Gender Identity for a discussion on non-heterosexual women), social access is difficult. Sources told DFAT that it is difficult or impossible for single people (men or women) to rent accommodation, even in large cities. The difficulty is worse in rural areas. A woman who is uninterested in marriage would likely come under significant pressure from her family to marry, usually to a husband of her parents’ choosing, which may be for cultural reasons or out of concern for their daughter’s welfare.
3.133 Divorce can be financially and socially devastating for women, especially if they were married young. Women may not have developed independent networks or life skills, and may find transition to single life very difficult. Often, the husband is the breadwinner (women’s participation in the workforce is very low) and his death or the termination of marriage can be financially devastating. This particularly affects women whose husbands initiate the divorce and provide no income support. In many cases, such women would be unable to rely on the support of their biological family, which is the traditional form of social welfare in India.
3.134 The experience of Muslim women can vary from that of other women. Sources told DFAT that some Muslim women, particularly where they are in a relationship with a man who has other wives as is permitted under personal status laws, may have less economic and social security, especially in the case of divorce.
3.135 The number of women who are single by choice or circumstance is rising, however Indian society can be very traditional and can be hostile to the unmarried, whether they are single because of divorce or widowhood. Single women can experience stigma and stereotypes, for example perceptions of being ‘choosy, morally loose or headstrong’, according to a Delhi-based sociologist who spoke to the South China Morning Post in November 2020. The Print, an Indian online newspaper, noted a ‘growing subculture’ of single women as characters in books and movies or within organisations, in July 2019. DFAT notes that the number of single women is growing, however assesses the phenomenon is nascent. DFAT assesses that single women experience a moderate risk of societal discrimination and a low risk of official discrimination.
Findings

The Tribunal accepts that the applicants’ mother was abused for many years by her ex-husband and that her ex-husband’s family also sanctioned this abuse. The Tribunal further accepts that the applicants’ mother has two Australian citizen children and one daughter who has a disability. The applicants’ mother was consistent with her claims and has provided evidence of the abuse and documented the assistance she has received from support organisations.
Women or a subgroup of women can comprise membership of a particular social group.[3] In this case, the applicant is a member of a particular social group in India of abused single mothers.
[3] MIMA v Khawar (2002) 210 CLR 1.
The Tribunal has considered whether the applicant could avail herself of state protection. DFAT assesses that state protection is inadequate and this Tribunal considers that the applicant would not be able to get effective protection from the state. DFAT states:
Violence against women is a significant problem in India and state protection is often inadequate. Sources told DFAT that police commonly refuse to register cases or investigate claims of violence, including violence that results in grievous bodily harm or death. DFAT assesses violence against women is common, and depends on several factors, including the family of the woman. Violence against women affects women of all socio-economic, caste and language distinctions.
In considering relocation, the option is open to all Indian citizens to relocate, but practically speaking this would not be an option for a single woman with children. One of the applicant’s mother’s children has a disability and the applicant would not have adequate male guardianship. She would encounter the challenges of different languages and the caste system, as well as the possibility of being found by her ex-husband or his family. In consequence, relocation is not an option for the applicants. The Tribunal considers that there is no location within India where the applicants would not face the real chance of serious harm arising from her membership of a particular social group.
The Tribunal finds that the applicants’ mother has a real chance of serious harm arising from her membership of a particular social group of abused single mothers in India. The Tribunal finds that the applicants’ mother has a well-founded fear of persecution for this reason.
For the reasons given above the Tribunal is satisfied that the applicants’ mother is a person of whom Australia has protection obligations. Therefore, the applicants’ mother satisfies the criteria set out in s36(2)(a) of the Migration Act and the Tribunal made a decision in case number 1812445 to remit the application for reconsideration with the direction that the applicant’s mother satisfied s36(2)(a) of the Migration Act..
As a result of the Tribunal’s findings in case number 1812445, the Tribunal finds that the first named applicant satisfies s36(2)(a) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a).
On 25 November 2022, the applicant’s representative wrote to the Tribunal advising that the second named applicant[wished] to withdraw from the review application as she now held Australian citizenship. A copy of the second named applicant’s Australian citizenship certificate was provided to the Tribunal, and the Tribunal accepted this withdrawal.
On 26 April 2023, the Tribunal received an online request that the third named applicant[be] withdrawn from the review application on the basis that he now held Australian citizenship. This withdrawal application was made by the applicant’s representative, and a copy of the third named applicant’s Australian citizenship certificate was provided to the Tribunal via email on 26 April 2023. On the basis of the certificate, the Tribunal accepted this withdrawal.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(b)(i) of the Migration Act; on the basis of membership of the same family unit and;
(ii)       the Tribunal does not have jurisdiction in relation to the second and third named applicants.
Nora Lamont
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.
…

[2024] AATA 1314

16 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Natural Justice

Procedural Fairness