2000926 (Refugee)

2000926 (Refugee) [2023] AATA 4825 (7 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2000926
COUNTRY OF REFERENCE:                   Sudan
MEMBER:Ann Duffield
DATE:7 December 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy 36(2)(a) of the Migration Act.

Statement made on 07 December 2023 at 1:26pm

CATCHWORDS
REFUGEE – protection visa – Sudan – imputed political opinion – anti-government – particular social group – failed asylum seeker – ex-government employee – level of generalised and indiscriminate violence – rejected asylum applicants routinely interrogated – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 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 14 January 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Sudan applied for the visas on 27 February 2019. The delegate refused to grant the visas on the basis that they were not persons to whom Australia had protection obligations.
The applicants were represented 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 OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons to whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicants claim to be citizens of Sudan and their identity and nationality was confirmed by the Department of Home Affairs. There is no evidence before the Tribunal to alter that finding. The Tribunal has therefore proceeded to make its assessment of the applicants’ claims with Sudan as the receiving country.
There is no evidence before the Tribunal that any of the applicants has the right to enter or reside in a third country.
The applicant is a citizen of Sudan born in [year]. His wife is the secondary applicant born in [year]. The other two applicants are children of the couple born in [year] ([age] years of age) and [year] ([age] years of age).
The applicant and his family came to Australia in December 2017. He was [working with Employer 1].
The applicant applied for a protection visa in February 2019 and was interviewed in relation to that application by the delegate of the department in October 2019. The decision to refuse the application was made in January 2020.
The applicants’ claims
The primary applicant is the only person on the application that is making any claims. The rest of the family are reliant upon his claims. The applicant provided the Tribunal with a copy of the delegate’s decision along with his application for review.
The applicant has made the following claims:
a.He is a Sunni Mulsim from [Tribe 1]
b.He was politically active in high school and university
c.He was detained and questioned by members of the intelligence service during university and in 1989 his scholarship for studies in [another country] was stopped by the government because of his political beliefs and opposition to the government.
d.The applicant was able to nonetheless secure employment in the public service from November 2005 and joined [Employer 1] in 2016 despite his claims that the intelligence service tried to block his appointment.
e.In 2017 he was sent to [Australia by Employer 1].
f.Whilst in Australia he opposed the [Sudanese government’s policy] of only supporting Sudanese in Australia who are pro-government. Because of this opposition and accusations that he organised a demonstration [in Australia] in 2018 he claims he was asked to return to the Sudan where he feared that his loyalty to the regime would be questioned, he would be accused of treason and thus face significant harm.
The delegate found that the applicant’s claims lacked credibility and did not accept that the government of Sudan had an interest in harming him or his family should he return to Sudan. The delegate did not accept that he was asked to return to Sudan because he had developed a political profile that was considered anti-government. In forming their view, the delegate had regard to country information relevant to the period in question and that which was available at the time of their decision in January 2020.
Information before the Tribunal
The Tribunal is mindful of its obligation to consider information provided by the Australian Department of Foreign Affaris. In May 2023 it issued the following update on the situation in Sudan:
Armed conflict between the Sudanese Armed Forces (SAF) and Rapid Support Forces (RSF) erupted on 15 April 2023. Led by General al-Burhan and General ‘Hemedti,’ respectively, fighting between the two forces initially concentrated in and around the capital, Khartoum. This involved heavy artillery fire and shelling particularly around strategic locations such as the Presidential Palace,
Khartoum International Airport, the state broadcaster, and bridge over the Nile River 28. Heavy weapons and explosives have been deployed in densely populated areas.29 The SAF have conducted targeted air strikes on RSF locations.30 Clashes have spread to other major towns particularly in the West Darfur region (see Figure 3) 31 however some regions have reportedly stabilised since this initial fighting.32 At the time of publication, fighting between the two forces in Khartoum has lasted 27 consecutive days. 33 Ceasefire agreements have frequently been violated by both the SAF and RSF. An initial 24 hour ceasefire agreed by the two forces effective from 18 April 2023 did not hold,34 as did a ‘series of short ceasefires’ throughout the week including those intended over the Eid period.35 A United States and Saudi Arabia mediated 72 hour ceasefire with effect from 25 April 202336 and a further 72 hour extension agreed by the parties on 30 April 2023 also failed.37 South Sudan mediated a week-long ceasefire agreement with effect from 4 May 2023, however that has also not quelled the fighting.38The RSF and SAF have each blamed the other for truce violations.39 However, both sides appear to have continued fighting to achieve an outright victory or otherwise build a strategic advantage for future negotiations.40 A protracted conflict situation is predicted. Open source intelligence reporting indicates the RSF and SAF ‘differ significantly in capability and strength,’ with the SAF having more personnel and equipment including air support.41 Neither party are currently considered to be in reach of a military victory.42 Both forces control territory and strategic locations43 with one source estimating the RSF holds approximately 80 per cent of Khartoum.44 Envoys from the RSF and the army attended ‘pre[1]negotiation’ discussions on 6 May 2023 in Jeddah, Saudi Arabia which international mediators hope will commence negotiations to end the conflict. However, reportedly the parties are only considering a humanitarian truce, rather than a cessation of hostilities.45 While talks have continued through early May, with the agenda focussing on a ceasefire and humanitarian aid corridor, no outcome was reported at the time of publication.4
Hundreds of civilians have been killed and thousands injured in the conflict. According to the Sudan Federal Ministry of Health as of 1 May 2023, at least 550 individuals have been killed and over 4,900 injured.47 The World Health Organisation advised on 9 May 2023, estimates indicated 604 deaths and more than 5,000 njured.48 The actual death toll is likely to be higher.49 Civilians have been trapped in urban areas by heavy fighting and shelling.50 Hospitals and other medical facilities have been targeted by air strikes or otherwise damaged in the fighting,51 and in some cases occupied and looted by armed groups.52 Hospitals in Khartoum have been largely unable to deliver medical treatment to civilians with makeshift medical clinics established to assist the sick and injured where possible.53 Outside Khartoum, civilians have been affected y fighting between the two forces, as well
as violence between other ethnic or tribal groups.54
Human rights violations against civilians are reported. The RSF are accused of raiding, looting and occupying civilian homes, primarily to embed themselves in residential areas for strategic purposes,55 however there are reports of residents being assaulted and questioned regarding their political or military affiliations.56 The RSF have reportedly established checkpoints across Khartoum where they search civilians, and check mobile phones for contact with the army.57 Armed groups,
primarily RSF soldiers, have been more broadly implicated in robberies, extortion, and assaults of civilians particularly across Khartoum.58 Foreign diplomats, United Nations staff and other aid workers have also been targeted by armed groups.59
Emerging reports indicate medical staff have been targeted for perceived RSF affiliation. Doctors and activists delivering services to civilians have been accused of assisting or cooperating with the RSF.60 Doctors have reportedly received death threats from the military, or pro-government supporters.61 The SAF arrested two members of ‘resistance committees’ driving an ambulance on 7 May before releasing them two days later,62 raising concerns of a further crackdown on civil society groups even amidst the conflict.63
Sexual violence against women is reported. According to a leaked United Nations document, female expats were removed from their homes in Khartoum by RSF soldiers with at least one rape recorded.64 United Nations Women have stated ‘reports of sexual and gender-based violence [against women] are already surfacing,’
65 and have funded technical support to ‘young Sudanese women’ for a
tracking app, and are recording ‘cases and allegations of gender-based violence.’66 UN independent experts have condemned reports of sexual and gender-based violence.
67
Hundreds of thousands of civilians have been forcibly displaced since the start of the conflict. .According to the United Nations High Commissioner for Refugees (UNHCR), as of 6 May 2023, approximately 123,000 people have departed Sudan (see Figure 4),68 and on 9 May 2023, the International Organisation for Migration (IOM) advised 700,000 people have been internally displaced.69 860,000 individuals are projected to leave Sudan by October 2023 (see Figure 5).70Refugees have crossed into neighbouring countries of South Sudan, Chad, Ethiopia, Egypt and Central African Republic.71 Khartoum airport is closed,72 and civilians have struggled to depart the city safely with high demand for transport including buses and cars.73 Some have fled on foot.74 Civilians have travelled to the Port of Sudan to escape by boat, where conditions are reportedly deteriorating due to the thousands of displaced persons awaiting evacuation, and lack of supporting services and infrastructure for such numbers.75 Others have travelled to the Egyptian border where there are significant backlogs, particularly for Sudanese men aged 16 and 50 who require visas to enter.76
The United Nations High Commissioner for Refugees (UNHCR) has urged countries to cease forced returns to Sudan. In a Position Paper issued 5 May 2023, the UNHCR called on countries to allow all civilians fleeing Sudan non-discriminate access to their territories, suspend negative decisions on asylum applications, and consider sur place claims.93 UNHCR advises a non-return policy, noting that a ‘bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security situation in Sudan has significantly improved to permit a safe and dignified return of those determined not to be in need of international protection.’94 UNHCR further advises that in light of the volatile situation across Sudan, it ‘does not consider it appropriate to deny international protection to Sudanese and former habitual residents of Sudan on the basis of an internal flight or relocation alternative.’95 No specific groups have been identified as in need of
international protection, however the position paper outlines the risk to all civilians in Sudan.96
Foreign governments have evacuated their citizens including Sudanese dual-citizens. Western countries including the United States, United Kingdom, Canada and Australia completed air evacuations of diplomatic staff and other citizens.97 Foreign nationals from ‘less resourced’ countries have faced greater difficulties leaving with the surging costs of fuel and transport, and a deteriorating security situation including the risk of being targeted by armed groups.98 Evacuations of foreigners have continued on a limited basis through early May.99 While neighbouring countries have continued to receive refugees with the assistance of international agencies,100 at the time of publication, there are no tailored international protection mechanisms available to Sudanese fleeing the conflict.
UNHCR – Position on returns to Sudan Refworld | UNHCR Position on Returns to Sudan
The UNHCR report relied on by DFAT in the forming of its updated advice, states the following:
On 15 April 2023, fighting broke out between the Sudanese armed forces (SAF), led by Abdelfattah al[1]Burhan, and the Rapid Support Forces (RSF), a paramilitary force led by Mohamed “Hemedti” Hamdan Dagalo, in multiple cities across the country, including the capital Khartoum.1 Hundreds of civilians are reported to have been killed, and thousands injured.2 The widespread fighting has led to shortages of food, water, medicine, fuel and electricity, and has left civilians without access to essential services.3 2. Prior to the eruption of the current conflict, Sudan was already affected by a major humanitarian crisis, with 3.7 million IDPs and 15.8 million people in need of humanitarian assistance, including approximately 11 million people in need of emergency assistance.4 Concerns have been expressed about a significant increase in humanitarian needs as a result of the fighting, while humanitarian response operations face major challenges due to the security situation.5 3. Despite calls by international and regional actors to end the hostilies, the fighting continues unabated. Large numbers of civilians have been forced to flee areas affected by the fighting, including people who were already internally displaced as a result of previous conflicts in Sudan, and refugees from other countries who had sought safety in Sudan.6 In addition to new internal displacement,7 significant flows of people fleeing Sudan to surrounding countries have been observed, including notably flows of Sudanese nationals to Chad and returning South Sudanese refugees to South Sudan, as well as outflows to the Central African Republic, Egypt, Ethiopia, Libya and Eritrea.
In view of the volatility of the situation in the entire territory of Sudan, UNHCR does not consider it appropriate to deny international protection to Sudanese and former habitual residents of Sudan on the basis of an internal flight or relocation alternative.
As the situation in Sudan is volatile and may remain uncertain for some time to come, UNHCR calls on States to suspend the forcible return of nationals and stateless persons who were habitual residents of Sudan, including those who have already had their asylum claims rejected. The bar on forcible return serves as a minimum standard and needs to remain in place until such time as the security situation in Sudan has significantly improved to permit a safe and dignified return of those determined not to be in need of international protection.
The UK Home Office Security Report on Sudan, dated June 2023 states the following:
a.the levels of indiscriminate violence in Khartoum, and its immediate hinterland, Darfur and North Kordofan are at such a high level to mean that there are substantial grounds for believing there is a real risk of serious harm to a civilian’s life or person solely by being present there
b.in all other parts of the country, while periodically experiencing armed conflict between the SAF and RSF and inter-communal violence, the level of violence is not at such a high level as to mean there is a real risk of serious harm to a civilian’s life or person solely by being present there
c.Civilians have been caught in the crossfire of the conflict and been directly targeted. As of 24 May 2023, Federal Ministry of Health had reported at least 730 deaths and over 5,000 injured with the majority of the reported casualties are in Khartoum and Darfur. While the proportion of civilian casualties is relatively small compared to the size of the population, figures are likely to underestimate the full impact of the violence. Sources also note a rise of lawlessness in conflict areas with reports of looting, carjackings and gender-based violence including by combatants
d.The conflict has led to significant population displacements. Sources estimate that around 1.2 million people had been internally displaced by the end of May, primarily moving away from Khartoum and parts of Darfur where the conflict is concentrated, into surrounding, more stable states. In addition, over 400,000 people are estimated to have left the country
e.The armed clashes have caused damage to infrastructure including hospitals, electricity supply, water supply, destruction of homes, mosques and shops
f.Internal relocation to areas where there is not a general risk of serious harm – in particular states in eastern, south-eastern and northern Sudan – may be possible in some cases. Overland travel from areas where there is ongoing conflict and in which there is a general risk of serious harm – namely Khartoum, Darfur and North Kordofan - is unlikely to be safe. Each case will need to be considered on its facts, taking into account the person’s background and living conditions in the area of relocation Country policy and information note: security situation, Sudan, June 2023 (accessible) - GOV.UK ( returning asylum seekers

A report from CGRS on the treatment of failed Sudanese asylum seekers returning to Sudan indicates, there are two controls upon arrival at Khartoum International Airport (KIA): first by the immigration service and then by the National Intelligence and Security Service (NISS). CGRS quotes information from Waging Peace, an NGO in Sudan, which staties that returnees on emergency travel documents are usually taken away by the NISS since they are immediately identified as rejected asylum applicant, which gives them a political profile.
At page 49 of the report, several sources describe the procedure upon arrival at Khartoum Airport. Passengers first pass through an immigration check, followed by a security check by the intelligence service (NISS), which is strongly present at the airport. The British and other western embassies, as well as UNHCR, IOM, Landinfo and a number of NGOs interviewed by the British-Danish mission, declared that they were not aware of Sudanese returnees having been ill-treated by the Sudanese security services. The British embassy wrote that voluntary or forced returnees, including rejected asylum applicants, do not face a risk upon return.
Nevertheless, several sources pointed out that returnees may be held for interrogation. According to the British embassy in Khartoum and IOM, these interrogations do not last long unless the person concerned is a “potential person of interest”. A number of non-governmental and international sources consulted by the CGRS stated however that voluntary or forced returnees, including rejected asylum applicants, are always interrogated by the NISS and, depending on their answers and on circumstances, they are free to go or detained and possibly tortured. The way a returnee is treated also depends on whether the media and civil society are informed of the return and on whether the returnee’s family is informed, according to Sudanese sources. According to IOM, holders of an emergency travel document (ETD) will be questioned more extensively or, according to a number of non-governmental sources, are at risk of being targeted, arrested and detained by the authorities. Persons without a compulsory exit visa will also attract attention upon their return to the airport and may be prosecuted, but not necessarily for political reasons, according to Landinfo. coi_focus_sudan._risk_upon_return_1.pdf (cgrs.be)
Before the Tribunal
The applicant, through his representative has provided a substantial about of information supporting the applicant’s claims. That information has been included in the findings and reasons below where relevant.
Findings and Reasons
The Tribunal is satisfied that the applicant and his family are citizens of Sudan and are Sunni Muslims. The Tribunal is satisfied that the applicants are members of [Tribe 1], and their family name reflects the principal branch of [their clan]. The Tribunal has no information before it to support a claim that the applicant will be persecuted by reason of his membership of this tribe.
The Tribunal notes the country information above makes it impossible for the applicant to return to Sudan either voluntarily or involuntarily. The airport is destroyed, and the security situation is dire.
In June 2023 the UK Home Office found that: the level of indiscriminate violence in Khartoum and its hinterlands, is such a high level to mean that there are substantial grounds for believing there is a real risk of serious harm to a civilian’s life or person solely by being present in these areas.
The UNHCR also considers that all persons fleeing the ongoing conflict in Sudan, as well as Sudanese nationals who are outside the country and who cannot return there because of the conflict, are likely to be in need of international refugee protection.
The Tribunal notes the UNHCR opinion and acknowledges that whilst the UK law would allow for all persons in Sudan to be considered as eligible for humanitarian protection, by reason of being equally at risk of the generalised and indiscriminate violence, the provisions in Australia’s complementary protection regime do not. S36(2B)(c) specifically excludes persons from being found to be at a real risk of suffering significant harm in a country if the Minister is satisfied that: the real risk is one faced by the population of the country generally.
The Tribunal notes that in circumstances of generalised violence, an applicant must demonstrate that they face a particular risk of harm because of a characteristic which distinguished them from the population generally. In this way, s.36(2B) (c) is directed towards circumstances in which the risk of harm is one shared by the general population, as opposed to one in which the applicant is exposed to harm in an individual or personal sense. However, the Federal Court has also accepted that circumstances may arise whereby return of a person to the receiving country “may be to expose them to a sufficiently real and personal risk of harm without them being targeted as an individual or member of a relevant group, and hereby result in s.36(2B)(c) not having relevant application “. As a result, it remains open for the Tribunal to consider whether the risk of harm faced by the population generally is also faced by the applicant personally, such that s.36(2B)(c) would not apply and the criterion in s.36(2)(aa) could be met.
However, in the circumstances of the applicant in the present case and notwithstanding the proposition that the reasoning above would support the applicant’s claim for complementary protection, the Tribunal is satisfied that the applicant is a refugee for the following reasons.
Should the applicant be forced to return to Sudan either now or in the reasonably foreseeable future, he would be detained and interrogated by the NISS upon his arrival (if that were even possible). He does not have a current passport and would be returning on travel documents issued by Australia. Country information above indicates that rejected asylum applicants, are always interrogated by the NISS and, depending on their answers and on circumstances, they may be tortured.
Regardless of the reasons why the applicant ceased his employment with the Sudanese department of foreign affairs, in the current climate it would not be unreasonable to posit that he would be viewed with increased interest and hostility if he were forced to return to Sudan.
The Tribunal is satisfied that the applicant faces a real chance of serious harm for the essential and significant reason of his imputed political opinion as anti-government, being a failed asylum seeker and ex-government employee, such that the applicant meets s.5J(4)(b) as it is described in s5J(5) of the Act as it is likely to involve deprivation of liberty or physical ill-treatment. The Tribunal is satisfied, given the conduct of the regime in recent years and months towards perceived political opponents that the harm would involve systematic and discriminatory conduct as set out in s.5J(4)(c).
The Tribunal finds that the harm the applicant faces is from the Sudanese regime and its agencies and hence the applicant will not be able to obtain effective protection from those authorities. In view of the volatility of the situation in the entire territory of Sudan, and in line with the UNHCR, the Tribunal does not consider it appropriate to deny international protection to the applicant on the basis of an internal flight or relocation alternative.
The Tribunal therefore finds that the real chance of serious harm faced by the applicant exists in the country as a whole and that safe relocation within Sudan is not reasonably available to him. There is no evidence before the Tribunal that the applicant has a right to live in a third country.
CONCLUSION
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.
Ann Duffield
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 4825

7 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Standing