1932272 (Refugee)

1932272 (Refugee) [2023] AATA 863 (11 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1932272
COUNTRY OF REFERENCE:                   Venezuela
MEMBER:Katherine Harvey
DATE:11 January 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration, with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 11 January 2023 at 9:29am

CATCHWORDS
REFUGEE – protection visa – Venezuela – political opinion – member of democratic party – supporter of and activist for Voluntad Popular (Will of the People) – name appears on Tascón list – political activism in Venezuela and Australia – fears arrest at airport upon return – fears identity documents confiscation – discrimination when looking for work – unable to acquire required Carnet de la Patria (Homeland Card) – unable to seek protection in third country – UNASUR (Union of South American Nations) countries now require validated criminal record certificate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 411(1)(c), 499
Migration Regulations 1994 (Cth), 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 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 21 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old woman who claims to be a citizen of the Bolivarian Republic of Venezuela (Venezuela). She arrived in Australia [in] November 2015 on a student visa and has not left the country since then.
She applied for the protection visa on 7 February 2019, and she provided a copy of her Venezuelan passport with her application.
On 21 October 2019, a delegate of the Minister refused the applicant’s protection visa application.
The review application
On 13 November 2019, the applicant applied for a review of the delegate’s decision. The applicant provided the Tribunal with a copy of the delegate’s decision and a 12-page submission responding to the delegate’s findings. 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 applicant to a hearing on 21 November 2022, and invited her to provide all documents that she intended to rely upon by 14 November 2022.
The applicant appeared before the Tribunal on 21 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 applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
On 5 December 2022, the applicant provided a post-hearing submission, with a statement and 21 attachments.
The applicant was unrepresented in relation to the review.
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 applicant meets the refugee criterion and, if not, whether she is entitled to complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Background
The applicant’s personal details are set out in her application for protection. She is [age] years old and was born and lived in [Venezuela], until November 2015. At the time she made her application, she stated that she was not married. She had applied for a visitor visa in December [2018], having completed studies in October 2018.
The applicant provided details of her family: her (now late) father, mother and [sister] live in Venezuela and her brother lives in Australia. She claims that she studied [and] a graduate diploma [in] Venezuela, and she provided a comprehensive work history.
Country of reference
The applicant claims that she was born in [Venezuela], and is a citizen of Venezuela. She provided a copy of her Venezuelan passport with her application.
The Tribunal is satisfied that the applicant is a citizen 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 her application, she claimed that she was concerned that she will be discriminated against, abused or hurt because she is a member of the democratic party and her name appears on the Tascón list.[1] She claimed to be scared of being arrested at the airport on her return to Venezuela, of having her identity documents confiscated, and of being discriminated against when looking for work. She claimed to be scared of an imminent political–military invasion and said her psychological and emotional wellbeing had suffered.
[1] The Lista Tascón or Tascón list is ‘[a] database of over 3 million people who supported a referendum to revoke the presidential mandate of Hugo Chávez in 2003–2004.’ European Asylum Support Office, Venezuela Country Focus: Country of Origin Information Report, August 2020, 10 (‘EASO’).
At her interview with the delegate, the applicant claimed that she was registered with, a supporter of and activist for Voluntad Popular (Will of the People). She claimed that she collected signatures and delivered political propaganda, and was active in political events such as marches, rallies and protests in Venezuela. If she returned to Venezuela, she believed that she would be targeted for returning from overseas and would be considered a traitor. The applicant claimed that she had attended political events in Australia and expressed her views about the Venezuelan government on social media platforms in Venezuela and Australia.
In the submission provided with her application for review, the applicant provided details of her membership of Voluntad Popular and demonstrated that evidence of her registration is publicly available. She also provided evidence that her name appears on the Tascón list, where her ideologia (ideology) is listed as opositor (opponent). She claimed that she had experienced discrimination when seeking employment because her name appears on the Tascón list. She claimed that she would have less access to goods and services in Venezuela because she does not have the required Carnet de la Patria (Homeland Card) and, as an opposition supporter, she would not be able to acquire one. She claimed that she had saved for years to be able to study in Australia, and coming to Australia in 2015 was the first time she had left Venezuela. She claimed that she could not seek protection in a safe third country. She claimed that UNASUR (Union of South American Nations) countries now require Venezuelans to provide a criminal record certificate validated by the Venezuelan authorities, which they would refuse to provide in her case.
At the hearing, the applicant maintained her claims and provided more detail of her experiences in Venezuela.
In a post-hearing submission, the applicant provided a statement addressing the main issues discussed during the hearing and 21 attachments, including newspaper articles, information from the Immigration and Refugee Board of Canada, the United States Bureau of Democracy, Human Rights and Labor, and Human Rights Watch, and information about Venezuelans’ right to enter other South American countries.
Assessment of claims and evidence
The applicant was in Australia at the time of this decision.
The applicant presented in a manner that the Tribunal perceived to be truthful and credible, and her information about how she thought she would be treated as a known opposition supporter was consistent with the country information.
Is the applicant a refugee?
In her 12-page submission responding to the delegate’s findings, which she submitted with her application for review of the delegate’s decision, the applicant provided evidence of her membership of Voluntad Popular, evidence that her name appears on the Tascón list, and she provided screenshots showing that this information was available on the internet. The applicant said that her name being on the Tascón list had meant that jobs related to her career [were] not open to her when she completed university. She would pass the health and practical parts of the recruitment and would then be told she would not get the job because she was a member of the opposition.
Political activity in Venezuela and Australia
At the hearing, the applicant spoke of her political activities. She said she started going to manifestations (demonstrations) in 2002 and that she was seeking change. The political party would set up a meeting point and they would all gather together and go from there. Depending on the year, the manifestations were for different things – elections, a referendum to choose new members for the Congress, food, supplies, and provisions for companies to be able to import food supplies. She said that they would block the streets so that the traffic could not get by, so that they could get attention for what they wanted to express, or that they would march to the municipal office. She said that they wore uniforms to identify themselves as part of the political party and that, at that time, supporters of Voluntad Popular wore yellow shirts with the name of the political party. She said that they would be attacked with tear gas and water cannon, and in the worst case, they were attacked with guns. She said colectivos[2] (collectives) and soldiers would attack the protesters. The last manifestation the applicant attended was in 2014, when [someone] who was standing near her, was [shot]. After that, she was too scared to attend.
[2] ‘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].
At the hearing, the applicant said that, because she attended many different manifestations, she and her family were known supporters of the opposition. She said that the patriotas cooperantes[3] (cooperating patriots) monitored neighbours and informed the government about their activities. She said that on many occasions she was followed from her house [to] the bus stop, to intimidate her by letting her know that they knew her daily routine and workplace. She also said that her family needed to pay for protection. After the applicant came to Australia, at the end of 2015 her family left their house of 30 years and moved to [another location].
[3] ‘El Nuevo Herald defined the patriotas cooperantes as “informers tied to chavismo who have been recruited to provide information to colectivos and communal groups on the activities carry out by their neighbours”.’, EASO (n 1) 38.
In her post-hearing statement, the applicant said that in 2017 the colectivos, with the help of the patriotas cooperantes, went to look for her at her family’s new house. Her family told them that she was not in the country. They called her a coward and said that they could verify the information with the Ministry of Foreign Relations (SAIME) and, if it was true, they hope that she would never return for the good of all. She is concerned that if she returned, she would be putting her mother and sister at risk.
As detailed in her response to the delegate’s findings and at the hearing, the applicant has continued her political activities in Australia. She attended the ‘El Pueblo Decide’ event at the Box Factory in Adelaide on 16 July 2017 that opposed the National Constituent Assembly convened by President Maduro. She also attended a protest on 23 January 2019 on the steps of the South Australian Parliament to demonstrate in support of the proclamation of Jose Guaido as interim president of Venezuela.
Based on the information before it, the Tribunal accepts that the applicant is a member of Voluntad Popular, an opposition party, and that, while she was not a political leader, she was actively involved in political protests in Venezuela. The Tribunal accepts that the applicant’s name appeared on the Tascón list. The Tribunal also accepts that information about the applicant’s political opinion is available in Venezuela. The Tribunal accepts that the applicant has continued her protests against the Venezuelan government in Australia.
Employment discrimination in Venezuela
The applicant told the delegate that she had looked for work in the public sector [but] was told that she would never get work in the public sector because she was not pro-government. At the hearing, the applicant said that it was very difficult to find employment in Venezuela when you were part of an opposition political party. She said that in interviews she was told that she had all the qualifications, but they could not hire her for other reasons. She said that even though the Tascón list had been taken down from the internet, it is still out there and every enterprising company can use your identification number (from the Venezuelan identity card) to know that you oppose the government. As a qualified [occupation] with post-graduate [qualifications], she was only able to find administrative and junior roles.
Human Rights Watch details how the voter information in the Tascón list was incorporated in the Maisanta program and allegations that this information was the basis for employment discrimination:
During the 2005 congressional elections, pro-Chávez campaigners designed a database known as the ‘Maisanta program’. Unlike the Tascón 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. … Hundreds of allegations emerged starting in 2004 and 2005 that government officials in different branches of public administration were using the Tascón list, the Maisanta program, or both, to fire and screen applicants for government jobs and programs.[4]
[4] Human Rights Watch, A Decade under Chávez: Political intolerance and lost opportunities for advancing human rights in Venezuela, September 2008, 20–21, (‘HRW’).
Academics in the United States have published research using the Maisanta program to calculate the price of political opposition[5] and the effects of political bias[6] in Venezuela, demonstrating that accessibility of the detailed information recorded in the Maisanta program.
[5] Hsieh, Chang-Tai, Edward Miguel, Daniel Ortega and Francisco Rodriguez, The Price of Political Opposition: Evidence from Venezuela’s Maisanta’, American Economic Journal: Applied Economics, Vol 3, No 2, April 2011, 196–214.
[6] Albertus, Michael, The Role of Subnational Politicians in Distributive Politics: Political Bias in Venezuela’s Land Reform Under Chávez, Comparative Political Studies, 23 June 2015, 1–44.
The Tribunal accepts that the applicant has experienced discrimination when seeking work because of her known political opinion and that she may experience discrimination in the future.
Carnet de la Patria
At the hearing, the applicant said that she did not have a Carnet de la Patria because she was not in Venezuela in 2016 when they were issued, and that she would not be able to access food, health supplies or other things like petrol without one. The Tribunal asked why she could not acquire one, given that her sister has one. The applicant understands that, during an amnesty of three to five or six months in 2017, her sister had removed her name from the Tascón list and had sworn to be part of the government. The applicant thought that people needed to remove their names during the amnesty, and that that option is not available anymore. She also said she did not think she would ask to have her name removed from the Tascón list because she would not want to renounce her political views.

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] 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).
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.[8] The Carnet de la Patria is required to access subsidised food and medicine[9], 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’.[10] 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).[11]
[8] World Food Programme, Venezuela Food Security Assessment, January 2020, main_findings_wfp_food_security_assessment_in_venezuela_january_2020-2.pdf (acaps.org)
[9] IRBC (n 9).
[10] 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).
[11] 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).
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’[12], and that ‘access to government databases by colectivos “takes place sui generis rather than officially”.’[13]
[12] 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’, EASO (n 1) 9.
[13] 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.[14]
[14] 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 applicant does 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, if the applicant were to apply for a Carnet de la Patria, she would be required to either conceal her true political beliefs or to disclose her political affiliations with an opposition party. The Tribunal also accepts that, if the applicant were to obtain a Carnet de la Patria, the Venezuelan government would be able to monitor her behaviour.
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.[15]
[15] 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.[16]
[16] 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 circumstances as a known supporter of an opposition political party and a signatory of the Tascón list. The Tribunal has considered that the applicant’s known political opinion has led to employment discrimination in the past and may make it difficult for the applicant to find future employment. The Tribunal has considered that the applicant would be required to either conceal her true political beliefs or to disclose her political affiliations with an opposition party if she 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 would find it extremely difficult to subsist in Venezuela without access to subsidised food and medicine through the Carnet de la Patria. Given the applicant’s personal circumstances and the country information referred to above, the Tribunal finds that, if the applicant returns to Venezuela now or in the foreseeable future, there is a real chance that she will suffer serious harm and systematic and discriminatory conduct because of her 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 under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration, with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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 863

11 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction