1931136 (Refugee)

1931136 (Refugee) [2023] AATA 1038 (18 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Besmellah Rezaee (MARN: 1281396)
CASE NUMBER:  1931136
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Katherine Harvey
DATE:18 January 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act
(ii)that the second named applicant satisfies s 36(2)(a) of the Migration Act, and
(iii)that the third applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 18 January 2023 at 11:51am

CATCHWORDS
REFUGEE – Protection Visa – Venezuela – race – Hazara – religion – political opinions – political opposition to the dictatorial regime of Nicolas Maduro – publicly opposed to the Venezuelan government – would not be able to access subsidised food or medical services without the Carnet de la Patria – applicant has a well-founded fear of persecution for reason of her political opinion – State protection is not available to the applicant – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 46, 65
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379

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 31 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are a [age]-year-old woman (the applicant), a [age]-year-old man (the second applicant) and their [age]-year-old, Australian-born son (the third applicant). The applicants claim to be citizens of Venezuela.
The applicant and the second applicant arrived in Australia in 2011 on a student visa. They last arrived in Australia with the third applicant in June 2018.
They applied for the protection visas on 31 October 2018.
On 31 October 2019, a delegate for the Minister refused to grant the visas.
The review application
On 1 November 2019, the applicants applied for a review of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 13 October 2022, the Tribunal invited the applicants to a hearing on 16 November 2022, and invited them to provide all documents that they intended to rely upon by 9 November 2022.
The first and second applicant appeared before the Tribunal on 16 November 2022 to give evidence and present arguments. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Spanish and English languages. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments. Where relevant, the applicants’ evidence to the Tribunal is referred to below in the Tribunal’s analysis.
On 10 November 2022, the applicants provided a pre-hearing submission, the third applicant’s birth certificate and country information including from Human Rights Watch, Amnesty International and the United Nations.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
On 7 December 2022, the applicants provided a post-hearing submission with photographs of the applicants at a protest [at a public venue] and details of a petition signed by the applicant.
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
The issue in this case is whether the applicants have a well-founded fear of persecution for a refugee nexus reason, or they are owed complementary protection, or they are members of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Background
The applicants’ personal details are set out in the application for protection. The applicant is [age] years old and was born in Petare, Miranda, Venezuela. The second applicant is [age] years old and was born in Merida, Merida, Venezuela. The applicants were married in 2012. The third applicant, their son, is [age] years old and was born in Australia.
The applicant provided details about her parents, sisters and brothers, who live in Venezuela and [a country], and her cousin, who lives in Australia. The applicant completed [degrees] in Australia. She provided a comprehensive work history for Venezuela and Australia.
Country of reference
The applicant claims that she was born in Miranda, Venezuela and that the second applicant was born in Merida, Venezuela. Their son was born in Australia. The applicant provided the biometric pages from their Venezuelan passports.
The Tribunal is satisfied that the applicants are citizens of Venezuela, and that Venezuela is the receiving country for the purpose of s 36(2)(aa) of the Act.
What are the applicant’s claims?
In the protection visa application, the applicant claimed that she feared persecution based on political opposition to the dictatorial regime of Nicolas Maduro. She claimed that the regime persecutes anyone who does not share the Communist-Castro or ‘Chavismo’ ideal. She said that the regime finances the operation of criminal groups called colectivos or circles bolivarianos,[1] who attack, torture and murder those who are not government supporters.
[1] ‘Colectivos are citizen security groups that evolved from the ‘Bolivarian Circles’, groups formed in the time of Hugo Chavez as grassroots support for defence of the Bolivarian revolution. Since then they have had a complex relationship with the Government and State security forces. While the term colectivo has been used as a catchall to refer to these groups, in practice they operate under parallel command structures. According to an analysis by the investigative organisation InSight Crime, some colectivos have morphed into criminal structures. Information indicates links between the State and these armed groups. President Maduro has mentioned his support to the colectivos on several occasions...’ United Nations Human Rights Council, Detailed findings of the independent international fact-finding mission on the Bolivarian Republic of Venezuela, 15 September 2020 [216]–[217].
She claimed that ‘Chavistas’ attack, lash out and mock anyone who was living outside the country and returns, calling them ‘seller of the homeland’ and ‘traitor’. She claimed that as resisters of the Communist-Castro regime, she and her family are at severe risk of cruel, inhuman or degrading treatment or death at the hands of these groups. She claimed that people who have lived outside Venezuela for extended periods are perceived as traitors to the fatherland and are at risk of bullying and social rejection, psychological abuse and kidnapping.
She claimed that in May 2018, when they arrived in Venezuela, a wave of bullying began at the airport when the National Guard and immigration police realised that her son was born in Australia. They were called ‘traitors’ and ‘cowards’ and she and her son were held separately from her husband. She claimed that she was required to remove her clothes and was asked for money and anything of value as a bribe to be allowed into Venezuela. She claimed that it was only due to the constant questioning of her family, who was waiting at the airport, that the authorities were obliged to return their documents and let them go free.
She claimed that her husband’s Venezuelan bank account was blocked because he had checked the balance outside of Venezuela. When they went to the [bank] to deal with the matter, they were the object of ridicule, attack, verbal abuse and humiliation for not being part of the Government’s political party, the United Socialist Party of Venezuela (PSUV). They could not access their bank account.
She claimed that when they tried to leave Venezuela, the immigration police stopped them to check their suitcases and interrogate them about why they were leaving. When they explained that they were studying and working in Australia, they were called ‘traitors’. Their documents were confiscated, and they were subject to verbal and physical aggression. An acquaintance at the airport intervened and they got their documents returned, but by that time they had missed their flight.
She claimed that the severe limitations in access to basic resources and services will mean that her son is without adequate nutrition, which will cause irreversible damage to his development and overall health.
She claimed that she was unsuccessful when she tried to obtain a new identification card called ‘El Carnet de la Patria’, which is a mechanism for social control and a compulsory document for obtaining the few crumbs of government services.
At the hearing, the applicant claimed that her son had been treated like he was a false Venezuelan, like he did not belong there because he was born in Australia.
At the hearing, the second applicant claimed that, because they support the opposition and not the government and because they have been away for 11 years, their lives will be in danger. He claimed that, if they go back, they will not have any type of work, nor access to the medical system nor any benefits because of their ideology. He claimed that they would be victims of kidnapping because they have been out of Venezuela for so long and racism and xenophobia are rife.
At the hearing, the second applicant claimed that the regime would require him to send his son to a communist school where he would be indoctrinated.
Assessment of claims and evidence
The applicant was in Australia at the time of this decision.
The applicant and the second applicant presented in a manner that the Tribunal perceived to be truthful and credible and their information about how they claimed to have been treated and how they thought they would be treated as people who opposed or were imputed to oppose the government was consistent with the country information.
Political activity in Venezuela and Australia
At the hearing, the applicant claimed to fear harm because of her political ideology and because she has been absent from the country for 11 years.
She said that, while she had never been a member of a political party, she had supported the opposition with her signature and that the government knows the way people vote and they have the public documents that they signed. She said that the government controls the electoral commission and they know who votes for them or not.
The second applicant said that since 1999, when Chávez took over, he has always voted for the opposition in presidential and mayoral elections because he never liked the politics being implemented in his country. He said he had been a member of the Justice First opposition party since 2004, when he registered with the party. He said that in Caracas, the state where they were, you could register online. He said that, through the elections, the government is able to know who is not with the regime and they know everything about him.
He claimed that from 2004 to 2007, he and his family always participated in opposition marches. He said that when he realised that people were being murdered and disappearing, he got scared, and he thought that his life would be in danger if he went on the marches and that he would not achieve anything. He said that even ordinary people like him have been put in prison.
He said that his sister used to work at [Bank 1] but Maduro took over the bank and got rid of anyone who opposed them and put their own people in. He said that his sister had worked there for 8 years, since 2008 or 2009, and that she has not been able to get another job because the regime knows that she is an opposer. She has participated in opposition marches and put videos on social networks. He said that he had tried to send her things from the United States to sell, but the economy is going down the gurgler. He has also tried to take her out of Venezuela through the jungle, but that has closed up now and she was not able to get out.
The second applicant claimed that he used to put a lot of information about Maduro on [Social Media 1] and [Social Media 2]. He said that [Social Media 1] blocked his account because he put up things that should not be published on [Social Media 1]. He claimed that he closed his [Social Media 2] account in 2020 because the government started attacking the relatives of the people who were outside the country criticising it. He said his mother asked him to stop because they were suffering the consequences. He said his parents lost the few benefits they had, which was a parcel of food every three months. They were meant to get it every 15 days and now they do not get it at all. He claimed that his father, mother and sister do not have the Carnet de la Patria and he sends them $500 a month to help them survive.
The applicants said that they had attended protests in Adelaide between 2018 and 2020, but from 2018 the regime became crueller to families. In the post-hearing submission, the applicant provided photographs of the applicant, second applicant and third applicant participating in protests [at a public venue], and a tweet from [media] in Venezuela of a photograph of the [date] January 2019 protest that the applicants attended.
In 2008, Human Rights Watch detailed how the Venezuelan government incorporated detailed voter information in the Maisanta program:
During the 2005 congressional elections, pro-Chávez campaigners designed a database known as the ‘Maisanta program’. Unlike the Tascon list, which contained only the names of those who had signed for the recall referendum, the Maisanta program contained detailed information on all registered voters, totalling over 12 million citizens. It informed the user if the voter had signed the recall referendum against Chávez, abstained in earlier elections, participated in the government’s missions, and signed the counter-petition for a recall referendum against opposition legislators.[2]
[2] Human Rights Watch, A Decade under Chávez: Political intolerance and lost opportunities for advancing human rights in Venezuela, September 2008, 20–21, (‘HRW’).
The Tribunal accepts that the applicant and the second applicant are opposed to the Venezuelan government, that they have expressed their opposition in Venezuela and Australia, and that it is credible that the Venezuelan government is aware of their opposition.
Discrimination in Venezuela
At the hearing, the applicant recounted her experiences at the airport in 2018, when they arrived in Venezuela, which she had detailed in her protection application.
The applicant also said that, when she was in Venezuela in 2018, she had gone to the bank by herself to try to get money out of her bank account. She said the bank teller had looked at her account and asked for her identification documents. The bank teller then started asking questions about why it had been a while since she had been to the bank, why there were no movements in the account and then other questions not related to banking. The bank teller then told her to wait out of the queue. Another person lining up at the bank, who had obviously overheard the conversation, said ‘I suggest you don’t wait because sometimes they call the colectivos and they pick you up and abuse you.’
The applicant said she also had problems in the supermarket and was not allowed to buy groceries because she did not have a Carnet de la Patria.
The applicant said that she went to the civil registry office to register her son’s birth about a week after arriving. She said that she showed them the document that she had recording his birth in Australia. The officials told her that he was born there (Australia) and he does not belong in Venezuela. She then said they started to verbally abuse her, asking why she was in Australia. She left and did not try a second time.
The Tribunal accepts that the applicants experienced harassment and intimidation and a denial of service in Venezuela in 2018.
Does the applicant have a well-founded fear of persecution?
The applicant claimed that she had looked at applying for the Carnet de la Patria online when she was in Venezuela in 2018 because she wanted to go to the supermarket and the bank. She said that she asked how to get a card and was told she needed to bring her work papers. When she said that she did not have them as she was outside the country, she said the verbal abuse started. She was asked why she was studying overseas and not in Venezuela, and why she was not supporting the regime. She said that she is seen as not supporting the regime because she has been out of the country for so long. She said that, if you do not get the card, you cannot get a job and you cannot have access to health or food, and even education gets complicated. She said that she did not actually apply because she did not have work papers.

She said that her older brother and sister have the Carnet de la Patria because they have never made any political comments. She said that they do not agree with the regime but there is nothing recorded that they are against it. However, her other brother and parents do not have the card and her brother has been attacked because of his political opposition. He is currently unemployed. He went for work and was asked directly, have you voted for the opposition? When he said he had not, he was told that they knew that he had.
The second applicant gave evidence separately to the applicant. He said that, if he tried to get a job, they would ask for his Carnet de la Patria, and to get one, he has to give his identity documents and then they are able to identify who is who in the system. He said they can tell who is behind the government and who is against it.
He said that when they were in Venezuela in 2018, he tried to get a Carnet de la Patria. He said that the regime wants everyone to get the card. He said that he went to a transportable unit and people who were dressed in red, who belong to Chavismo, asked him for his Venezuelan identification card. He said that they took his ID and looked him up on the computer. Then they asked him questions about whether he was working. He said that the people wasted a lot of time and did not give him the card.
The World Food Programme Venezuela Food Security Assessment in 2020 estimated that 32.3 per cent of Venezuelans (9.3 million people) were food insecure and in need of assistance, and that 59 per cent of households had insufficient income to buy food.[3] The Carnet de la Patria is required to access subsidised food and medicine[4], and the UN Human Rights Office ‘continued to receive reports of some persons allegedly being denied food assistance on political grounds, for criticism of the Government’.[5] In discussing access to social programs and benefits, the Immigration and Refugee Board of Canada reports that:
Sources indicate that Venezuelan authorities reportedly exclude Venezuelan citizens opposing the Maduro government from food aid distribution (Researcher 9 Jan. 2020; UN 15 Sept. 2020, para. 145; Freedom House 4 Mar. 2020). The UN Fact-Finding Mission reports that the Venezuelan authorities rely on an identity card, the Homeland Card (Carnet de la Patria), to deliver humanitarian aid to citizens on the basis of "loyalty" to the regime (UN 15 Sept. 2020, para. 145). Similarly, the Netherlands' information report on Venezuela states that "there are reports that citizens who sympathise with the opposition are denied social services" (Netherlands June 2020, 36). In this context, the Homeland Card is regarded "by many" as a means of government control (Netherlands June 2020, 36)., Reuters similarly reports that human rights groups believe that the Maduro government uses the Homeland Card to monitor the populace and "allocate scarce resources to his loyalists" (Reuters 14 Nov. 2018). The same source notes that the database associated with the Homeland Card system includes data on the cardholder's date of birth, family, employment and income, property ownership, medical history, government assistance received, social media presence, political party membership, and electoral participation (Reuters 14 Nov. 2018).[6]
[3] World Food Programme, Venezuela Food Security Assessment, January 2020, main_findings_wfp_food_security_assessment_in_venezuela_january_2020-2.pdf (acaps.org)
[4] Immigration and Refugee Board of Canada, Responses to Information Requests: VEN200881.E, 28 January 2022 Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca) (‘IRBC’).
[5] United Nations Human Rights Council, Situation of human rights and technical assistance in the Bolivarian Republic of Venezuela, 21 October 2021, at 11 G2129296.pdf (un.org).
[6] Immigration and Refugee Board of Canada, Responses to Information Requests: VEN200429.FE, 3 February 2021 Responses to Information Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca).
The Immigration and Refugee Board of Canada reports that applicants for the Carnet de la Patria are required to answer questions on their existing health conditions and electoral participation. The US Country Reports 2020 indicates that applicants are required to present ‘proof of political affiliation’ and answer questions about their social service benefits.[7]
[7] IRBC (n 4).
In its August 2020 report, the European Asylum Support Office said that, while the Tascón list and the Maisanta program had been favoured during the Chávez era for discrimination and persecution on political grounds, ‘during the Maduro government the monitoring and discrimination tool most used is the Carnet de la Patria (Homeland Card)’. The report said that monitoring of low-profile targets is carried out by armed colectivos and ‘boliches’[8], and that ‘access to government databases by colectivos “takes place sui generis rather than officially”.’[9]
[8] Boliches or Fuerzas Patrióticas de Liberación Nacional (Patriotic Forces of National Liberation), ‘the FPLN is a splinter of the now inactive Bolivarian Liberation Front (FBL, Fuerzas Bolivarianas de Liberación), supports the Venezuelan government, and has reportedly worked alongside local authorities and security forces’, European Asylum Support Office, Venezuela Country Focus: Country of Origin Information Report, August 2020, 9.
[9] Ibid 34–35.
The United States Department of State reports that the Carnet de la Patria is used to obtain social services and also allows the Maduro government to monitor citizens’ behaviour:
China, through its telecommunications corporation ZTE (Zhongxing Telecommunication Equipment Corporation), provided the Maduro regime with technology to monitor citizens’ social, political, and economic behavior through an identity card called carnet de la patria (homeland card). To force citizens to comply, the regime made it obligatory to present the card to obtain social services, including pensions, medicine, food baskets, subsidized fuel, and in some instances COVID vaccinations. Citizens essentially had no choice but to obtain and use the card despite the known tracking methods.[10]
[10] United States Department of State, Bureau of Democracy, Human Rights and Labor, 2021 Country Reports on Human Rights Practices: Venezuela, Venezuela - United States Department of State.
The Tribunal accepts that the applicants do not have a Carnet de la Patria and it accepts that a Carnet de la Patria is required to access subsidised food and medicine and other benefits in Venezuela. The Tribunal accepts that the applicant and the second applicant would be required to either conceal their true political beliefs or to disclose their opposition to the government if they applied for the Carnet de la Patria. The Tribunal accepts that the Venezuelan government, which is known to repress dissent, is able to monitor citizens through the Carnet de la Patria.
Analysis
The Freedom House Freedom in the World 2022: Venezuela report overview states that:
Venezuela’s democratic institutions have deteriorated since 1999, but conditions have grown sharply worse in recent years due to harsher crackdowns on the opposition, and the ruling party relying on widely condemned elections to control all government branches. The authorities have closed off virtually all channels for political dissent, restricting civil liberties and prosecuting perceived opponents without regard for due process. The country’s severe humanitarian crisis has left millions struggling to meet basic needs, and has driven mass emigration.[11]
[11] Freedom House, Freedom in the World 2022: Venezuela, Venezuela: Freedom in the World 2022 Country Report | Freedom House.
The Bertelsmann Stiftung BTI 2022 Country Report – Venezuela reports that Venezuela is:
A petrostate in decay, the country is characterized by the amassing of political and economic power in the hands of an autocratic ruling elite, unfettered corruption, patronage networks, weak institutional arrangements and the brutal repression of dissent.[12]
[12] Bertelsmann Stiftung, BTI 2022 Country Report – Venezuela, Gutersloh: Bertelsmann Stiftung, 2022
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal has considered the applicant’s and the second applicant’s circumstances as people who publicly oppose to the Venezuelan government, where it is credible that the Venezuelan government is aware of their opposition. The Tribunal has considered that the applicant and the second applicant would be required to either conceal their true political beliefs or to disclose their political opposition to the government if they applied for the Carnet de la Patria, and that the Venezuelan government, which is known to repress dissent, is able to monitor citizens’ behaviour through the Carnet de la Patria. The Tribunal has considered that the applicant and the second applicant would not be able to access subsidised food or medical services without the Carnet de la Patria. Given the applicant’s and second applicant’s personal circumstances and the country information referred to above, the Tribunal finds that, if the applicant or the second applicant return to Venezuela now or in the foreseeable future, there is a real chance that they will suffer serious harm and systematic and discriminatory conduct because of their political opinion.
Conclusion
Having considered the applicant’s claims individually and cumulatively, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reason of her political opinion.
The Tribunal is satisfied that the real chance of persecution relates to all areas of Venezuela, that it would involve serious harm and systematic and discriminatory conduct, and that it is for the essential and significant reason of her political opinion.
The Tribunal is satisfied that the applicant is not able to take reasonable steps to modify her behaviour to avoid a real chance of persecution.
The Tribunal is satisfied that effective protection measures would not be provided to the applicant by the State.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
Having considered the second applicant’s claims individually and cumulatively, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for reason of his political opinion.
The Tribunal is satisfied that the real chance of persecution relates to all areas of Venezuela, that it would involve serious harm and systematic and discriminatory conduct, and that it is for the essential and significant reason of his political opinion.
The Tribunal is satisfied that the applicant is not able to take reasonable steps to modify his behaviour to avoid a real chance of persecution.
The Tribunal is satisfied that effective protection measures would not be provided to the applicant by the State.
For the reasons given above, the Tribunal is satisfied that the second applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a)
The Tribunal is satisfied that the third applicant, being the son of the applicant and second applicant, is a member of the same family unit as the applicant and second applicant for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the applicant’s and second applicant’s application. It follows that the third 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)that the applicant satisfies s 36(2)(a) of the Migration Act
(ii)that the second applicant satisfies s 36(2)(a) of the Migration Act; and
(iii)that the third applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the applicant and the second applicant.
Katherine Harvey
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.
…

[2023] AATA 1038

18 January 2023

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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