2000236 (Refugee)

2000236 (Refugee) [2022] AATA 5189 (12 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2000236
COUNTRY OF REFERENCE:                   Iraq
MEMBER:Roslyn Smidt
DATE:12 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 December 2022 at 12:36 PM

CATCHWORDS
REFUGEE – protection visa – Iraq – religion – Shi’a Muslim –alleged killing of a member of the militia – risk of harm -–– lack of credible evidence –no real chance of serious or significant harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K-LA, 36, 65, 499
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 December 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Iraq applied for the visa on 13 August 2018. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant’s claims were credible.
The applicant appeared before the Tribunal on 7 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
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.
Background
The applicant is a [age deleted]man of Shi’a Muslim faith from Bat’ha in Dhi Qar Province, Iraq. His father and four siblings remain in Iraq. One sister resides in[Country 1].
The applicant left school in September 2002. He sold [goods] in a market in Bat’ha from January 2007 until December 2012, then worked as a [occupation 1] in Suleimaniyah in the Kurdish Region Iraq [KRI] until December 2015. He was unemployed from then until 15 July 2017 after which he worked in [occupation 2]in Basra until his departure for Australia.
The applicant obtained a passport [in] August 2016. On 20 November 2016 he applied for a partner visa to join his wife in Australia. The visa was granted on 31 July 2017. He arrived in Australia [in] August 2017. His marriage broke down and his wife’s family forced him to divorce her and his partner visa application was refused in May 2018. He did not realise that his application had been refused until he received a telephone call from a Department officer who advised him he was no longer in Australia legally.
Claims and evidence
Evidence to the Department
In a statement dated 13 August 2018 the applicant said that his [brother A] had served in the Iraqi Federal Police and was sent to Mosul to fight ISIS. His family told him that on 1 October 2017 [brother A] got into an argument with [Mr A]an influential member of the Asaeb Ahi Al Haq militia who was also in Mosul to fight ISIS. During the argument [brother A] insulted [a senior member] of the AHH Qais, [Mr B] . [Brother A] shot and killed[Mr A] . Fearing retaliation from the AAH he fled to and entered the Kurdish area of Iraq with the held of a smuggler. While there he contacted his father and told him that the entire family was now in danger.
The applicant’s father took[brother A] ’s wife and children, the applicant’s three sisters and brother to a farm remote area in Basra owned by a friend of his father. A few days later a distant relative of the applicant’s family saw that their house had been badly damaged by gunfire asked the neighbours what had happened. They told him that a group of AAH members had questioned them about his family then fired shots at the house causing significant damage.
Following this the applicant’s father went to see the tribal sheikh to try and a achieve a settlement with [Mr B’s] tribe. He offered to disown [brother A]to save the rest of the family. The sheikh said that he would not be able to make these arrangements as while [Mr B]’s tribe would be prepared to accept a monetary settlement, the AAH would not and would insist on killing a member of his family.
The applicant said that his family continued to live in very poor conditions on a farm near Basra.
In support of these claims the applicant provided
· a handwritten document in Arabic. According to a poor English translation the document is addressed to all tribes in Thi Qar [Dhi Qar] and throughout Iraq. It appears to state that the sheikhs and elders from the [tribe 1] met on 13 October 2017 and decided to remove the applicant’s family from the child for not handing over a murderer for justice. It appears to sanction the shedding of blood, but it is not clear what this means. It also appears to state that the tribe takes no responsibility for the applicant’s family.
· A card purported to be [name deleted] police ID. It was issued by the Ministry of the Interior on 11 March 2015 and expired on 11 March 2019. It has a picture of a man in what appears to be military style uniform. There is an English entry on the other side. There is no mention of the word police on the English side.
The applicant provided the Tribunal a copy of the delegates’ decision. According to the decision during an interview held on 3 May 2019 the applicant said that he had been informed about his brother’s killing of [Mr A]in Mosul about two months after he arrived in Australia. He was told the [brother A]and [Mr A] had argued because [Mr A] was angry while [brother A] was paid for his work, he was not. He said that other members of the AAH were present during the argument. How [brother A] managed to flee does not appear to have been established.
The delegate did not find these claims credible. He noted that evidence which indicated that members of militias were paid by the government in 2017 and found the claim that [brother A]and [Mr A]had argued over wages implausible. He also found the claim that [brother A]was able to escape after shooting an influential member of the AAH in the presence of other members of the militia implausible. Finally, he found the claim that the applicant’s family had not experienced any problems with the AAH despite the fact that they continued to live in Basra implausible.
Evidence to the tribunal
The applicant was invited to attend a hearing at the Tribunal on 18 July 2022. He did not respond to the invitation and failed to attend the hearing. His application was dismissed on the same day. On 20 July 2022 a friend of the applicant called the Tribunal to advise that the applicant was sick and ask for a postponement of the hearing. The applicant was advised that in order for the application to be re-instated he should provide an explanation for his failure to attend and a medical certificate regarding the illness which had prevented his attendance. He provided a medical certificate which stated that he had been examined on 29 July 2022 and was suffering from thorasic and leg injuries, chronic pain and insomnia.
The application was re-instated on 16 August 2022 and hearing scheduled for 7 September 2022.
At the hearing the applicant confirmed that he had not experienced any problems prior to leaving Iraq in August 2017.
The applicant said that [brother A] joined the Iraq Federal Police sometime between 2004 and 2006. I asked when he was sent to Mosul. He said that he was in Baghdad, but when he had a problem, he went to Erbil in the Kurdish area. I asked if [brother A] had ever been in Mosul. The applicant said [brother A] had been in Mosul, but he could not remember when. I advised him that I understood that [brother A] had faced problems while he was in Mosul and asked if that was correct. The applicant said that he had had a lot of problems since arriving in Australia and it was too difficult for him to think about [brother A]’s problems.
I advised the applicant that I understood to be the reason he feared harm in Iraq was linked to [brother A]’s problems in Mosul and I would have difficulty understanding his fears and whether he was entitled to protection in Australia if he did not tell us about [brother A]’s problems. He said that [brother A] had been in Baghdad and then he was sent to Mosul. He added that the situation was very dangerous in Iraq and people were being shot in the streets but provided no further information about [brother A]’s problems.
I noted that he had claimed that he would be at risk of harm if he returned to Iraq because of an incident in October 2017 and asked him to tell me about that incident. He said that his brother had had problems with the Mahd Army and he did not want to upset his family in Iraq by asking them questions about that incident when he spoke to them.
I asked the applicant to tell me about [brother A]’s problems with the Mahd Army. He said that in Iraq there were police checkpoints, that all the militias were criminals and that sometimes there were convoys of armed people. I advised him that I would talk to him about the current situation in Iraq later, but first I needed information about [brother A]. I reminded him that he had claimed that [brother A] had shot and killed a man in Mosul and that people associated with that man now wanted to kill him. I asked him to confirm that this claim was true and if so to tell me what had occurred. He said that it was not that they wanted to kill [brother A], but there were threats against many people. He said that there was a lot of evidence of this on the internet.
I noted that the applicant had previously claimed that [brother A]killed someone from the AAH during an argument, that he had then fled to the Kurdish area and that because of this all of the members of his family were at risk of being killed. I observed that he did not appear to recall these claims which suggested they were not true. I also advised him that it was my understanding that the AAH and the Mahdi Army were completely different groups and were currently in conflict with each other.
The applicant said that he was unwell and taking a lot of medication which meant that his memory was very poor. He said that he constantly spoke about these things every day. He added that his mother had moved from Erbil to [City 1].
I asked the applicant to tell me what he feared would happen to him if he returned to Iraq. He said that only God knew. He might be killed, but he did not know. I observed that it appeared that the claims in his initial application were not true, and his fears related to the general situation in Iraq. He said that his claims were true and he was afraid because of what his brother had done, not because of the general situation. He added that for Iraqis the militias were all the same. AHH had originally been part of the Mahdi Army, but they had split.
I asked the applicant who he feared might kill him if he returned to Iraq. He said that he feared that tribes associated with the man his brother had killed.
I asked the applicant to clarify the contents of the letter from his tribe provided to the Department. He said that it was from his tribe and said that his family had been expelled. I advised him that it was my understanding the tribes negotiate with each other when a member of one tribe had committed a crime against a member of another in order to find a solution and avoid violence, but I was not aware of any evidence which suggested that family members of someone who had committed a crime were likely to be expelled from their tribe for that reason. The applicant said that the situation in Iraq was different now and his family had been expelled in order to avoid bloodshed.
I asked the applicant if anything had happened to any member of his family in Iraq since the incident. He said that his sister got married so his mother moved between [City 1] and Erbil. I observed that he had previously stated that [brother 1] had moved to Erbil but claimed that the other members of his family were in hiding in Basra. I asked when they had moved to Erbil. He said he could not remember when they moved, but it was a long time ago. He confirmed that it was after the incident involving his brother in 2017.
I noted that the applicant’s spouse visa application had been refused in May 2018, and asked why he had not applied for protection until August 2018. He said that all of his correspondence went to his in-laws address and they did not forward to him. In addition, he had hoped that he and his wife would reconcile.
I advised the applicant that I was aware that there had been a number of problems in Iraq for a number of years, including sectarian violence and criminal violence. I told him I was also aware of problems relating to the growing power of militias and the conflict between militias and political groups. However, I had to determine whether he would be at risk of serious or significant harm if he returned to Iraq for any reason. I noted that he had not experienced any problems before he left Iraq and advised him, that I had significant doubts about the claims he had made regarding his brother and advised him that the evidence on the current situation in Iraq did not appear to suggest that militias, political groups, the army or the government were targeting ordinary citizens and it therefore appeared that he did not face a real chance of suffering such harm if he returned to Iraq.
The applicant said it was correct that militias such as the Mahdi Army and the AHH were killing each other, but it was ordinary people in the streets who were suffering. He also said that he could live in Erbil if he returned to Iraq, but he had nothing to return to as his life had been destroyed.
The applicant spoke about difficulties he was experiencing in Australia including pain which required significant medication and lack of employment and said that this had hampered his ability to provide evidence. I advised him that I accepted that he was in pain and that he was taking a range of medications. However, no medical evidence had been provided which suggested his health problems meant that he was unable to provide evidence at the hearing and while I accepted that his poor health may have had some impact on his ability to discuss his claims, I had great difficulty accepting that this explained the fact that he did not appear to have any recollection of his initial claims.
CONSIDERATION OF Claims and evidence
The applicant clearly had no recollection of the claims in his initial application when asked about his fears at the hearing. Even when I prompted him with some details of his earlier evidence, he responded with statements about the general situation. While I acknowledge it is now some time since the applicant first applied for protection and I accept that he is suffering for ill-health and that he is distressed about his current situation in Australia, I do not accept that he was unable to recall the claims in his initial application for that reason. I believe he failed to recall these claims because they are not true and were manufactured to support a claim for protection following the refusal of his spouse visa application.
As I do not accept that [brother A] killed a member of the AHH militia in 2017 it follows that I do not accept that the applicant or other members of his family were threatened or attacked by members of the AHH militia or anyone else for that reason or that he and his family were expelled from their tribe for that reason. No other explanation has been provided for the claimed militia attack on the applicant’s family home in 2017 or his family’s expulsion from their tribe in 2017. I do not accept that these events occurred for any reason. I find that they were also concocted to support the applicant’s claim for protection.
In reaching this conclusion I have considered the letter which purports to confirm that the applicant’s family had been expelled from their tribe. However, the original Arabic document is handwritten and could have been prepared by anyone. There appear to be two wet stamps at the bottom of the page, but such stamps are available commercially in Australia and no doubt in Iraq. I believe this document was supplied or manufactured at the applicant’s request and I have given it no weight.
It appears that the applicant does not wish to return to Iraq largely because of concerns about the current situation and the role of militias in southern Iraq. He was born in Basra and resided there prior to arriving in Australia and I have therefore considered whether there is anything in the evidence regarding that area which suggests that there is a real chance that he would experience serious or significant harm if he returns to Iraq and resides there within the reasonably foreseeable future.

It is clear from reports including DFAT and the European Union Agency for Asylum (EUAA) Iraq Security Situation Country of Origin Information Reports issued in October 2020 and January 2022 that Basra suffers from a range of significant economic, political, security problems experienced in many parts of Iraq and no doubt this makes life difficult for many of those living in the area.
These conditions and the presence of a number of militias with links to Iran caused an outbreak of mass demonstrations in mid-2018 and again in late 2019. They were met with violence from the security forces and militias. More recent demonstrations protesting matters such just for those involved in earlier protests have also been met with violence and the evidence indicates that those who are involved in protests or play a significant role supporting demonstrators are at risk of arrest or violence from security forces or militias.
There is nothing in the evidence which suggests that the applicant has been involved in protests or other political activities likely to be of interest to the authorities, security forces, political groups or militias in the Basra area. He does not claim that he would become involved in protests or other anti-government or anti-militia activities if he returned to Iraq and there is nothing in the evidence which suggests he would do so. On the evidence currently before me, I am not satisfied that he faces a real chance of experiencing serious or significant harm for any reason linked to demonstrations or anti-government or anti-militia activities in Basra.
According to the EUAA report, unlike some parts of Iraq, where militias and political groups are mostly interested in acquiring assets related to the oilfields or ports rather than gaining or attempting to gain control of local neighbourhoods and government ministries. This appears to have result in conflict between those competing for assets. At the hearing the applicant confirmed that militias were often in conflict with each other but said that it was the ordinary people who were suffering.
It is clear from the evidence that the problems caused by political and militias groups have contributed to economic and security problems which have impacted on most if not all Iraqis. It is also possible that civilian bystanders have been killed or injured during outbreaks of violence between these groups. However, there is nothing in the available evidence which suggests that ordinary citizens not involved in a militia or political group or in protests or activities seen as detrimental to the interests of these groups face more than a remote chance of being harmed by militias. Nor is there anything in the evidence which suggests that the applicant would become involved with a militia or political group on return to Iraq or that he would engage in activities which these groups would view as adverse to their interests. In these circumstances, I am not satisfied that he faces a real chance of experiencing serious or significant harm for any reason linked to the presence of militias or political groups in Basra.
Reports suggest that many of the security incidents in southern governorates such as Dhi Qar result from tribal disputes and/or criminal activity. According to the EAUAA report violent conflict between tribal groups has become an increasing problem as result of factors such as high levels of corruption, unemployment, access to employment or resources such as water and increases in criminal activities such as drug trafficking and smuggling.
There is no credible evidence before me which suggests that the applicant has been involved in tribal disputes or in activities associated with tribal disputes or in criminal activities. Nor is there anything in the evidence which suggests that he would become involved in activities of this kind if he returned to Iraq. As with the violence between militias, it is possible that someone not involved in these activities could nevertheless face harm, for example if they are present when violence breaks out. However, there is nothing in the available evidence which suggests that there is more than a remote or insubstantial possibility that an ordinary citizen would face this harm. In these circumstances, I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm as a result of tribal disputes or criminal activities by people associated with tribal groups or others if he returns to Basra.
Sectarian violence has been a problem in many parts of Iraq in the past. The DFAT report notes that a number of religious minority groups may still face problems in Iraq. However, the majority of the population in Basra are followers of Shia Islam and there is nothing in the available evidence which suggests that Shia Muslims face problems in Basra because of their religion. I am not satisfied that the applicant faces a real chance of experiencing serious or significant harm for reasons of religion if he returned to Basra.
I have considered whether the combined or cumulative impact of the problems and violence in Basra mean that the applicant faces a real chance of experiencing serious harm for a reason in s 5J(1) or significant harm for any reason. However, in my view the evidence does not support such a finding.
Finally, I note that the applicant has resided in Suliamanyia in the KRI in the past and that at some of his family members appear to live in Erbil. According to his evidence he could live in Erbil if he wished to do so. For the sake of completeness, I have also considered the possibility that the applicant would face serious or significant harm if he returned to Iraq and resided in Erbil or elsewhere in the KRI.
There is no suggestion that the applicant or any member of his family has experienced problems of any kind in the KRI at any time. Despite having ample opportunity to do so the applicant did not make any claims which suggested that he feared future harm from anyone in the KRI. Apart from the problems associated with incident involving his brother, which I do not accept, his evidence indicated that he feared harm from violence associated with Shia militias such as the Mahdi Army or the AHH. These militias do not have a presence in the KRI. And while KRI is not entirely free of violence, it has experienced lower levels of insecurity than other areas of Iraq, and the security situation in the region remains relatively stable.
On the evidence currently before me I am not satisfied that the applicant would face a real chance of experiencing serious or significant harm if he returned to Iraq and resided in Erbil.
conclusion
For the reasons given above, I am not satisfied that the applicant faces a real chance of suffering serious harm if he returns to Iraq within the reasonably foreseeable future. I am therefore not satisfied that he has a well-founded fear of harm for any of the reasons for a reason in s 5J(1) and therefore 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), I Tribunal has considered the alternative criterion in s 36(2)(aa).
For the reasons given above, I am not satisfied that the applicant faces a real risk of suffering significant harm as defined in s 5(1). I am therefore not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Iraq, there is a real risk that he will suffer significant harm and therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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.
…

[2022] AATA 5189

12 December 2022

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

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Standing