1934505 (Refugee)

1934505 (Refugee) [2023] AATA 677 (30 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Michelle Gunnaratne (MARN: 0958672)
CASE NUMBER:  1934505
COUNTRY OF REFERENCE:                   South Africa
MEMBER:Mark Bishop
DATE:30 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 30 January 2023 at 11:55am
CATCHWORDS
REFUGEE – protection visa – South Africa – Alzheimer's disease – dementia stage – competence to give evidence under oath – decision on the papers – complementary protection criterion – physical and mental health of the applicant – medical evidence – mental torture, emotional abuse and psychological disturbance – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of South Africa applied for the visa on 17 March 2017. The delegate refused to grant the visa on the basis that she did not satisfy the requirements as set out in the relevant regulations.
The applicant suffers from Alzheimer’s disease. Medical advice provided to the Tribunal outlines the applicant is in the dementia stage. Medical advice provided to the Tribunal outlines that the applicant is not competent to give evidence under oath, it would be difficult for her to give instructions, she would be unable to present arguments in support of her case and would struggle to give accurate and reliable answers to any questions other than the most basic questions such as name and date of birth.
The Tribunal resolved the review application on the papers
The applicant provided a copy of the decision record to the Tribunal.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration under s 36(2)(aa) of the Migration Act.
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.
Background Information
On 19 December 2022 the Tribunal wrote to the applicant and invited her to attend a hearing on 27 January 2023. The Tribunal advised the applicant in writing
·You should provide a written submission setting out all claims made and maintained by the applicant by 27 January 2023. The submission should be accompanied by a signed declaration from the applicant that the submission has been read and explained to them and that it accurately and completely presents their claims.
·If you are proposing that a witness, give evidence at the hearing, a witness statement setting out the witness's evidence should be provided to us by 27 January 2023. Where a witness is unable to adopt or sign a witness statement, particulars of the evidence the witness is expected to address and how it is relevant to the case should be provided by this date.
In addition to the letter of information as outlined in paragraph 12 above the Tribunal provided the applicant with a fact sheet that outlined in considerable detail information about hearings.
In response on 26 December 2022 the applicant provided a written response that advised as follows:
·The applicant would attend the hearing. Her representative would attend the hearing.
·“The applicant is aged and suffers Alzheimers. There may be difficulty for her to sometimes understand what is happening. However her daughter and grandson will assist in giving evidence. Medical Information to follow.”
·“Medical evidence to follow. The applicants circumstances are to be evidenced by these professional reports and letters.”
·The applicant’s daughter, [Ms A], will appear as a witness and “…will provide detailed description of applicant’s circumstances.”
·The applicant’s grandson, [Mr B], will appear to give evidence and he “…will explain what he sees in the applicant’s circumstances and practical aspects of her day to day living.”
In response to the information as outlined above in paragraph 14 on 9 January 2023 the Tribunal wrote to the applicant noting “…the advice provided on 26 December 2022 concerning the age and possible disability relating to Alzheimer’s suffered by you and that medical information will follow. The Tribunal notes that at time of writing it has not received any current medical advice.” The Tribunal requested the applicant provide a copy of a current medical report by Monday 30 January 2023 from a medical professional that addresses the following:
·A diagnosis of the current medical condition of the applicant and prognosis for the future.
·Advice as to whether the applicant can understand the nature of the proceedings.
·Advice as to whether the applicant is competent to give evidence under oath.
·Advice as to whether the applicant is competent to give instructions to her advisers.
·Advice as to whether the applicant can present arguments in support of her claims.
·Advice as to whether the applicant can understand and answer questions from the Tribunal.
On 25 January 2023 the applicant provided a copy of an updated medical opinion[1] from [Associate Professor C] dated 11 January 2023. In response to the questions set out in paragraph 15 above [Professor C] advised as follows:
[1] Doc ID number 10676336
The diagnosis for the current medical condition -
·[The applicant] has Alzheimer's disease. She experienced memory decline from about 2014 and my clinical diagnosis is Alzheimer's disease. This was supported by an FDG PET scan on 28 May 2018 which showed hypometabolism in the areas affected Alzheimer's disease.
·I believe that the applicant could struggle to fully understand the nature of proceedings but does have enough cognitive function to broadly understand the nature of these.
·With respect to evidence under oath, l do not believe she has the competence to give such evidence.
·With respect to giving instructions to her advisors, she may well indicate that she has trust in family members as advisors but with anybody else I think it would be difficult for her to give such instructions.
·With respect to presenting arguments in support of her claim, she would be unable to do this.
·With respect to understanding and answering questions from the Tribunal, she may be able to answer very simple questions such as her name and date of birth and some autobiographical details but with any other questions she would struggle to give an accurate and reliable answer.
The Tribunal notes the medical opinion referred to in paragraph 17 above contains the sentence “I have provided a report on 19 December [2022]”. The Tribunal notes further that at paragraph 16 the Tribunal requested the applicant provide a copy of such report. On 26 January 2023 the applicant provided copies of these report to the Tribunal.[2]
[2] Doc ID numbers 10681423 and 10681424. The Tribunal notes that Doc ID number 10681423 details [Professor C]’s qualifications, experience, [expertise.]
The Tribunal notes the medical report from [Professor C] dated 19 December 2022[3] states the following:
·I have assessed [the applicant] several times over recent years. She has Alzheimer’s disease and is in the dementia stage. I would like to make the following comments-
·During Covid, [the applicant] had a blood clot in her right lung, she was in lock down for months as could not have the vaccine. Her mental health declined significantly. [the applicant] had a major fall in October with extensive haematoma, admitted to [Hospital 1].- where blood thinners had to be ceased to stop the bleeding; however and the risk of pulmonary embolism increased. She remains on morphine patches to manage her severe pain. [the applicant] requires support now, in showering and help with dressing, as well as organising her room. [The applicant] has good days and bad. She still recognises her family, but gets easily muddled and manages well in a structured environment. As is typical of the more severe stages of this disease, she can be found looking for a dog or cat in the cupboard, or believes and shares that she went shopping for the day. She is constantly counting her hangers as she believes her clothes are being stolen. She has issues with anxiety and incontinence, possibly side effects of one of the donepezil, one of her dementia medications. [the applicant] was isolated from her friendship group as her memory failed her. People who shared her dining table moved away, leaving her most lost and isolated. At times she retreats to her room, unsure if in COVID lockdown, which indeed has occurred again at her facility from mid-November 2022.
·I feel it would be very inappropriate for her to not remain here, and indeed in her current facility.
[3] Doc ID number 10681423
The Tribunal notes Doc ID number 10681424 concludes with the following statement “…[the applicant] suffers from severe dementia and has confirmed diagnosis of Alzheimer’s disease. In recent times, her cognitive function has severely declined. Detachment from her daughter, [Ms A], will be further detrimental to her psychiatric health. I fully support her Application for a Protection Visa…”
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
In her Application for a Protection Visa[4] dated and signed 8 March 2017 the applicant declared as follows:
·She left South Africa to be with my daughter and grandson, my only family.
·I am now [advanced age], my husband passed away in April 2016 and even since their I have been struggling on my own. I have relied on my daughter [Ms A] to manage all my needs from Australia. I am on the phone to her daily as I get both confused and concerned about things – life things and I’m not capable of caring for myself at this stage of my life. If I return to South Africa I feel I will he isolated from my only family and continue to decline in a place when I know few people, and of course at my age, people in the village are dying every day. So I become more and more isolated and I’m nervous dying alone.
·She did not experience harm in South Africa but fear. As an [age] year old I am a target, so leaving the secure lock up at [location] I was always nervous whether I was being taken to a medical appointment or to draw money, it was always a risk. Every day we would hear of rapes and attacks and there have been some at [location] at night, which again caused me so much stress. I feel very vulnerable.
·In the past she has moved home and advised We moved from [location], which was an in-house retirement village in [City 1]. We were warned not to go outside the gates of the village as our safety could not be guaranteed. It was like living in a prison.
·She advised “unknown” in response to a question as whether she thought she would be harmed or mistreated inf she returned to her home country. She advised “…unfortunately crime is part of the culture and change that is occurring in South Africa, everyone is a target, and everyone has had an experience. We had three home invasions when we were in [City 1], we were unharmed but frightened.”
[4] [Department file number]
The applicant provided appropriate identification documentation to the Department.[5]
[5] See Department Reference ID numbers [number] to [number] on the Departmental file.
The applicant provided a copy of a medical report[6] dated 21 February 2017 from a [Dr D] that advised as follows:
·[Ms A] brought her mother [the applicant] to my rooms on December 22^nd 2016. Whilst [the applicant] was in good spirits, I found her to be very emotional and unsettled in her life. [The applicant] was experiencing constant shaking in both her left arm and right leg and not being able to write at all was concerning her.
·I have checked her medications and have requested her medical files from [Dr E] in [Town 1], South Africa.
·On her second visit: January 30th, the shaking has worsened since her last visit and she cannot fly overseas.
·I've requested blood tests and referred her to [Dr F] Neurologist for full investigation.
·Clearly [the applicant] is suffering from the loss of her husband of nearly 59 years in April 2016 and the sense of isolation in South Africa with her only daughter, [Ms A] and only grandson [Mr B] residences of Australia. I believe this is now weighing on her heavily, raising her anxiety.
·Once I receive the neurological review which will include a range of neuro tests, I will have a better understanding on how best to support and treat [the applicant] health plan.
[6] [Department file number]
The applicant provided a further medical opinion to the Department dated 28 November 2017 from [Associate Professor C] a consultant physician in geriatric medicine, general medicine and rehabilitation and working as Director aged care research at [Hospital 2].[7] This opinion after summarising patient (applicant) history set out a number of identifiers as to memory decline, reduced recollection of recent events, difficulty in following plots in tv shows and books, is fully independent in personal and most domestic activities of daily living “that she is allowed to engage in”, a sister assessed with Alzheimer’s disease, and poor score (1/5) on the Montreal Cognitive Assessment for short term memory. The opinion set out the following:
·I strongly suspect the prodromal stage of Alzheimer’s disease but to further increase diagnostic accuracy I am organising an MRI (which I expect to show hippocampal atrophy) and a SPECT which will probably have to followed by an FDG PET scan (I expect to see hypometabolism in the posterior cingulate and precunei with sparing of the primary sensorimotor cortices). If the diagnosis is confirmed she is not yet at the stage where a cholinesterase inhibitor like donepezil is needed but that may not be more than a year or two off. In the meantime I have given her Souvenaid which is a medical food to sustain memory function in those early stages of Alzheimer’s. A recent publication in Lancet Neurology verified its effectiveness in this situation and in fact I am giving a talk on that very paper in the use of Souvenaid to our local GP’s tonight.
[7] [Department file number]
On 2 October 2019 the Department wrote to the applicant and requested further information[8] as to “…detailed medical evidence from specialists including diagnosis; prognosis; type/s of care needed; specific treatment details; and any other ongoing health needs that have been identified. Please provide additional information about capacity to travel, including any mobility impairments or special needs.”[9]
[8] [Department file number]
[9] [Department file number]
In response the applicant provided a copy of a medical certificate[10] signed by a [Dr G] dated 29 October 2019 that advised the applicant was unable to travel because of “…frailty and mildly impaired cognition…due to this frailty, age and cognition., travelling will bee too taxiing for her health and might cause serious consequences like severe confusion, anxiety, severe fatigue, falls, thromboembolism and maybe permanent physical and psychological damage…[The applicant] is mentally and physically stable when she is in a stable predictable environment with the knowledge that her daughter can attend to her needs promptly and effectively. It would be a serious detriment to her health to not have this support”
[10] [Department file number]
In addition the applicant provided a further comprehensive medical report[11] from [Associate Professor C] dated 29 October 2019 that set out the following:
·She came to my rooms today accompanied by her daughter [Ms A] and her sister was also present. She has the very early stages of Alzheimer’s disease but is showing very little change in the two years that I have now been seeing her.
·Her memory has been declining for about five years but as stated there is not a lot of change in recent times. She is worse when she becomes flustered and certainly can become quite anxious in what she sees as stressful situations. There is some reduction in ability to recall recent events and she has had some difficulty following the plots of TV shows. She is an avid reader but can have difficulty remembering the names of the books that she has read.
·She still remains independent in personal and domestic activities, at least to the extent that she is allowed to perform them. [Ms A] looks after finances and provision of items that need to be shopped for. Mood and personality remain much the same apart from a tendency to anxiety. There is no change in language or sleep.
·I believe that she does have very mild cognitive impairment probably due to Alzheimer’s but with her age and the lack of clear progression in recent times I doubt that she is going to require more intensive care than she is currently receiving. Indeed many of my patients in this situation remain stable for years.
·With respect to her prognosis, as stated there is no guarantee that she is going to move on to the more severe stages of cognitive impairment or even dementia and whilst she does have some clear needs, and I do not think she would be able to cope on her own back in South Africa, I do not believe that she is going to be a major impost on the health care system here in Australia.
[11] [Department file number]

The Tribunal notes the Department[12] wrote to the applicant on 24 September 2019 granting an applicant request for waiver of an interview on the basis the applicant had provided two medical reports dated 28 November 2017[13] and 11 August 2018[14].
[12] [Department file number]
[13] See paragraph 21 above
[14] The Tribunal notes this report sets out a diagnosis of”…mild cognitive impairment due to Alzheimer’s disease… and emphasised she is not at this stage in the dementia phase of the illness…”
The Tribunal notes the Department wrote to the applicant on In addition to the information set out in her Application for a Protection Visa[15] the applicant provided detailed particulars[16] in response to a request from the Department. Those particulars addressed the following:
·Previous [extensive] travel to Australia.
·Questions raised by the Department as to delay in making an Application for a Protection Visa.
·Difficulty in finding safe, secure accommodation in South Africa and past examples of attacks in aged care on the applicant’s husband.
·Life in South Africa inclusive of home care, home invasion, security needs and breaches, the vulnerabilities of age.
·Complementary Protection, Medical Evidence.
·Ongoing violence in South Africa, personal experience and examples and impact on family in Australia.
[15] See paragraph 18 above
[16] [Department file number]
The Tribunal notes the applicant has provided a detailed medical history accompanied by several medical reports from senior medical personnel that outline her current physical and mental medical condition and she has Alzheimer’s disease and is in the dementia stage and [because of that medical condition] it would be very inappropriate for her to not remain in her current facility. The Tribunal gives significant weight to the various medical reports of [Professor C] prepared on and from December 2022.[17]
[17] In particular see paragraphs 14 to 19 above that detail the more recent medical condition of the applicant
On 28 January 2023 the applicant provided additional pre-hearing submissions plus 6 character references.[18]
[18] See Doc ID numbers 10686139 to 10686144
The pre-hearing submissions addressed the following:
·Recent letters and medical reports from [Professor C] and [Dr H] previously received by the Tribunal and summarised above.
·A detailed written statement from the applicant’s daughter.
·Detail relevant to s 36(2)(aa) of the Migration Act (the complementary protection provisions). The applicant submitted there are substantial grounds for believing that there is a real risk that the person will suffer ‘significant harm’ if they were removed from Australia to their home country.[19] The applicant submitted that if she were to be removed from Australia to her home country she would be subject to “cruel or inhumane treatment” for the reasons outlined in the submission.[20] The applicant in this submission addressed the following:
oRelevant professional medical opinion concerning the fact the applicant suffers from Alzheimer’s disease and does not have enough cognitive function to understand the nature of the hearing.
oThe applicant’s total dependence on her daughter for care and support for day to day functioning.
oThe applicant is unable to take care of herself.
oThe applicant is unsettled and unsure of herself owing to her condition of Alzheimer’s
oThe applicant invited the Tribunal to make a favourable decision on the papers to avoid the strain inherent in sitting through a hearing.
[19] See Doc Id number pages 2. The Tribunal notes the applicant has referred to relevant parts of s.36 (2)(aa) of the Migration Act
[20] See Doc Id number pages 2 and 3
The Tribunal has considered all the above information. The Tribunal has considered all material contained in both the Departmental and Tribunal files. The Tribunal notes the Department granted a waiver to the applicant of an interview in September 2019 on the basis of comprehensive medical advice provided to the Department.[21]
[21] See paragraph 29 and footnote 12 above.
The applicant has led a long and productive life almost exclusively living in South Africa raising a family and rising to senior positions in the [specified] industry. Prior to the death of her husband the applicant regularly visited Australia to see her resident family in this country. Her adherence to visa conditions during these many visits was absolute.
The applicant’s immediate family live in Australia. She has virtually no family in South Africa.
The applicants daughter is a person of high repute in business and industry circles. The applicant’s daughter is a person of superior character who has devoted the more recent years of her life to the care and support of her mother. The applicant’s family in Australia are the only persons who can provide the necessary love and attention needed by the applicant in the limited time left available to the applicant.
To remove the applicant from Australia the following steps are absolutely critical for her wellbeing:
·The need for the applicant’s family to arrange safe removal and passage to South Africa and immediate relocation in a suitable aged care facility in that country.
·The need to organise accompanying personnel to ensure the safety of the applicant in her time of travel and relocation.
·The need to attend to immediate and ongoing medial attention and supervision in South Africa.
·The need to obtain a safe place of residence where an elderly citizen of South Africa will not be exposed to incidents of violence that appear to be more than common.
·The need to organise, fund and provide suitable non-medical care and attention to an elderly person remote from family and mostly unaware of her own circumstances.
The matters summarised in paragraph 38 above are not matters of choice. They are necessary for the ongoing welfare of an elderly person struck down by a debilitating and life threatening disease.
In many respects the applicant has enjoyed a more than comfortable life as a member of the elite in a now functioning democratic country protected (mostly) by the rule of law. Individual incidents of violence or break-ins observed or experienced by the applicant do not amount to state failure to Act. Country Information on South Africa as set out by the delegate show there is a well-established system of police protection, court intervention and mostly non-discriminatory treatment of elderly white citizens in times of need. Failure on the part of security firms or management of aged care facilities occurs fairly regularly in this country as well as set out in recent Royal Commission reports.
The significant harm likely to be suffered by the applicant in her last few months or years in South Africa is a form of mental torture, emotional abuse and psychological disturbance without the Tribunal speculating on the likelihood of physical assault or violence. This is clear from the various medical reports provided by the applicant from expert and senior medical personnel.
These medical reports are not one off opinions provided to the Tribunal. The reports are many. They trace the physical and mental decline of the applicant since the government of Australia permitted her entry to this country in 2016. The reports outline the particular disabilities faced by the applicant in her daily life. The reports outline the applicant’s decline over time.
The applicant submitted the Tribunal should have regard to compassionate and compelling circumstances. The Tribunal is not aware of such a provision in the relevant section of the Migration Act.
The review application before the Tribunal is in reality a humanitarian concern. The narrow realities of this review application do not permit the Tribunal to issue a direction under s. 36(2)(a) of the Migration Act as there is insufficient evidence before the Tribunal to warrant the drawing of a conclusion that the applicant is a refugee.
For the reasons set out above relating to the real risk the applicant will suffer significant harm if returned to her country of citizenship the Tribunal is satisfied the applicant satisfies the criteria for the grant of a Protection Visa under s 36 (2) (aa) of the Migration Act.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Mark Bishop
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 677

30 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction