2002870 (Refugee)

2002870 (Refugee) [2024] AATA 4104 (22 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2002870
COUNTRY OF REFERENCE:                   Lebanon
MEMBER:Sue Zelinka
DATE:22 August 2024
PLACE OF DECISION:  Sydney
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 22 August 2024 at 3:59pm
CATCHWORDS
REFUGEE – protection visa – Lebanon – membership of particular social group – person with disabilities – adult man with epilepsy and developmental condition aggravated by head injury – teased and ill-treated – unable to work, and cared for by mother with support from other family members – physical injury – all immediate family members now in Australia – country information – limited facilities, support and opportunities – not working and confined to house of distant relative or state care would limit opportunities for harm – complementary protection – lack of care and dignity – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), (2A), 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 February 2020 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 Lebanon applied for the visa on 12 August 2016. The delegate refused to grant the visa on the basis that the applicant was not a refugee as defined by s 5H(1) of the Act.
The applicant appeared before the Tribunal on 12 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Mrs A], the mother of the applicant, and [Mr B], a family friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant in this case is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Background
The applicant in this case is a [Age] year-old single man who was born in [Location] in Syria but who has Lebanese citizenship and travelled on a Lebanese passport. The Tribunal had received submissions prior to the hearing that the applicant had a developmental disability and would not be able to give testimony alone.
Capacity of the applicant
The submissions before the Tribunal included comprehensive material from a Sydney Arabic-speaking psychiatrist and a short letter from a Lebanese psychiatrist from a hospital in Akkar governate, the area in which the applicant lived in Lebanon. This short letter stated that the applicant “has been undergoing treatment for a long time (last visit 06/07/2007). Because of his suffering from congenital mental retardation, his condition requires ongoing medical follow-up treatment along with support from his parents, due to his inability to carry out any one task for a long time”. This letter was issued in February 2018. The material from the Sydney psychiatrist was more comprehensive. As background, he stated that the applicant’s mother said that her son suffered mental retardation since childhood, was slow to speak, and had not attended school for more than a year being unable to learn. Hence he was illiterate. She also stated that he had been diagnosed with epilepsy at the age of [age] and takes medication for this condition.
The Tribunal notes that on receipt of medical documentation about the applicant’s lack of cognitive skills, the delegate cancelled the departmental interview and proceeded with a decision on the papers. The Tribunal considered the matter and concluded that the applicant should appear with his mother who is his carer. She would have his best interests at heart and could speak for the applicant if he could not speak for himself. This path was supported by the applicant’s family.
Original claims
The claims as put on the protection visa application (PVA) were that the applicant had suffered a blow to the head in 2015 requiring stitches after which “his brain was not working properly”. He became fearful and could not look after himself and was scared to go out. Before the injury he was able to work but after the injury he could not. The employment section of the PVA noted some labouring jobs for the local council in the village in which he lived in Lebanon but only until 2015.
At hearing
The Tribunal spoke first to the applicant, asking him if he was able to say anything about Lebanon where he grew up – anything at all that he remembered from living there. The applicant replied that he could not remember. The Tribunal tried reframing the questions, asking if he remembered his grandmother or his aunt (both of whom he lived with). He said he could not remember. The Tribunal asked him about nowadays, where did he live. He said he lived with his mother. The Tribunal asked if he had other family here and he replied there are three girls who are married. His mother takes him to visit them when they are not working. The Tribunal understands from information about the family that these three “girls” are the applicant’s adult married sisters. The Tribunal asked him what he did. He said he used to go to work but had an accident and fell down. He can’t work now, he said. When asked what he does now, he said he spends some time outside the house and then comes back. When he is outside he is just sitting by himself, he said. The Tribunal then took testimony from the applicant’s mother.
The applicant’s mother
The applicant’s mother described her early life in the small village of [Village], which the Tribunal has located as being very close (perhaps [Distance] kms) to the Lebanon-Syria border right at the northern end of Lebanon in Akkar governate. She said the village had about [Number] inhabitants. Although the applicant’s mother grew up in [Village], she was actually born across the border in Syria: she travelled to Australia in 1993 on a Syrian passport (which the Tribunal has sighted) before becoming an Australian citizen. The Tribunal asked the applicant’s mother what was the dominant religion in the village and she replied Greek Orthodox. The Tribunal has noted that when locating the village on an internet map, the accompanying picture shows a church with an orthodox cross on top of it. It assumes that the village is still Greek Orthodox which is consistent with information that there are such communities in the Akkar governate.
She had five children and her first husband died when the children were quite young, meaning she had to work to earn the money to keep her family. She lived in a house owned by her parents: they lived upstairs with her sister and she and the children were downstairs. The Tribunal was not able to establish the dates of birth of the five children: she explained apologetically that she was illiterate and did not write down dates. There were no documents for the other children which could establish their ages, but she said that her first-born was a girl, then a couple of years later she had the applicant (whose date of birth is given on his passport as [Year]), followed by two more girls and lastly another son called [Mr A].
The applicant’s childhood
The Tribunal tried to establish when the applicant’s differences from other children became apparent. She said he was very slow to start speaking. He started school at the same time as other children – at the age of 6 – but after a couple of years the teachers told her that he could not learn so it was better for him not to go to school. There was only one primary school in [Village] so there were no alternatives. The applicant simply stayed at home all day (his mother was out working, but the grandparents were about) and waited for the other children to come back from school so he could play with them. The applicant was singled out by the other children for teasing and worse. The applicant’s mother said that he would come home with blood on him. The applicant’s mother herself was illiterate and very young at the time she had the applicant (and his older sister) with three more children to come. She had neither the knowledge nor the resources to seek advice or assistance in regard to her son – if indeed any assistance was to be found in this part of Lebanon during the civil war (1975-1990).
At some point in his childhood the applicant developed epilepsy. At one point the applicant’s mother has said that he was [age]; at another point, [age]. He had a seizure but the applicant’s mother did not what it was. When he had another, people around her told her about it – that the condition was called “electricity to the head”. They told her about a doctor in Tripoli, a major city [to] the south of their village. She had little money and doctor’s fees were high, but eventually they went and the doctor did a head scan and prescribed medication. They went regularly up to the time of the applicant mother’s departure, after which her parents took the applicant. However, the doctor in the letter said the applicant’s last visit was in 2007 (see paragraph 12 above).
The family’s departure
Despite the applicant’s inability to concentrate and his illiteracy, he worked from time to time. The locals knew him and would hire him for unskilled labouring jobs. Thus his life continued. When the applicant was 24, his mother and two of his sisters departed for Australia, leaving him and his brother at home with the grandparents and their aunt. (The older sister was by this time married and not in the family home). The applicant’s life went on in the same way with occasional jobs and his brother looking out for him. The applicant’s mother returned to visit him in 1995, 1997, 2002, 2004, 2008 and 2010 for periods of time ranging between one month and five months. The applicant’s mother could not remember any of these dates but thought she had returned to Lebanon maybe four times. The dates were established when the Tribunal, after the hearing, received the copies of her Australian passport issued in [1995] and the subsequent one. During these trips, the applicant was still living in the same way with his brother, his grandparents and his aunt and was much the same.
The applicant alone in Lebanon
However, in the immediate years before the applicant came to Australia, and after his mother stopped visiting Lebanon, his situation deteriorated. His brother [Mr A] came to Australia and now has Australian citizenship; the same with the applicant’s older sister. The applicant had no siblings left in [Village] and particularly no brother to look out for him. His grandparents were getting older and frailer and the applicant’s aunt had to care for them, leaving her less time and energy to look after the applicant. At some point an incident occurred when the applicant was riding in an open truck to a labouring job and the other workmen jostled or pushed him so he fell off the truck and broke his arm. Two other incidents occurred when the applicant was working as a labourer at the local cemetery and the other workmen there thought it funny to tease him. They locked him into the cemetery overnight and he was not found until the following morning, absolutely terrified. On another occasion, they were throwing bits of masonry at him – a larger piece hit him in the head, leaving a large gash which required stitches. There was enough damage to be visible in scans undertaken when the applicant finally arrived in Australia (the Tribunal has seen evidence of this in the medical submissions).
The description of these incidents above is as the applicant’s mother has been told by her sister in Lebanon. It is impossible to date them as the applicant’s mother has no recall of dates. The two incidents at the cemetery appeared to be the most critical: the applicant could not work after that; he became even more uncommunicative; he couldn’t follow simple instructions like he used to be able to do. The aunt in [Village] (the mother’s sister) was phoning to say that the applicant’s mother had to take responsibility: she either had to come to Lebanon to look after him or she had to take the applicant away. The applicant’s mother applied for a visitor’s visa for her son but she said this took almost two years to eventuate. Through her sister, she then found a villager in [Village] who was coming to Australia to see his own family and who agreed to accompany the applicant on the plane trip. Hence the applicant arrived in Sydney in June 2016. His grand parents and his aunt are now all dead and according to the applicant’s mother, the family house where they lived has been pulled down.
In Sydney
Since being in Sydney, the applicant has been referred by a local doctor to an Arabic-speaking psychiatrist who confirmed that the applicant suffered from epilepsy for which he now takes medication. The psychiatrist also confirmed that the applicant suffered from moderate mental retardation and could not provide a simple account of himself or his circumstances. The psychiatrist stated that this was a permanent condition which is unlikely to improve and noted that the applicant “is unable to perform the basic activities of daily living such as self-care, preparing meals, transport or self-management without supervision”.
The applicant initially continued his practice of working as an unskilled labourer when he came to Sydney. However, in December 2018 when he was [labouring], he fell and broke his hip. This required hospitalisation and the insertion of screws to hold the bones in place. (Again, the Tribunal has seen the medical evidence). He has not worked since. He resides with his mother who cares for him on a full-time basis and receives support from the other family members – the applicant’s siblings and their children. His mother has sought appropriate medical care and takes him to appointments. She has equipped one room as a television room for the applicant where he watches cartoons. This information was confirmed by the applicant’s witness, a family friend.
Analysis, findings and reasons
The Tribunal accepts that the applicant is a national of Lebanon and that Lebanon is the receiving country in this case.
The Tribunal accepts from the testimony of the applicant’s mother that the applicant was, as a child, different from other children in that he “could not learn” and had virtually no schooling. This is supported by the later written medical reports. The Tribunal notes her testimony that he was teased by other children, often ending with his being cut or injured to the extent that she saw blood on him when he came home. This pattern of singling the applicant out for his difference also applied to his adulthood, particularly when he was alone (that is, without his brother) and vulnerable. The Tribunal is satisfied that other labourers caused harm to the applicant on three occasions – harm that was serious enough to reach the attention of his aunt who was otherwise at that time fairly distant in terms of her care of the applicant. The first incident was the jostling of the applicant out of the truck, causing him to fall onto the road and break his arm. The other two incidents seemed to have an even more damaging effect: the terror that was induced in the applicant when he was locked in the cemetery overnight, and the harm caused by the serious gash on his head when his fellow-workers threw bits of masonry at him. These workers may have thought they were being funny rather than malicious. However, they were singling out the applicant for abusive treatment because he was different from them – slower, simpler, a person with “electricity in the head”: a person with disabilities.
In noting that the applicant has been treated differently from others throughout his life in Lebanon leads to a consideration of whether the applicant is a member of a particular social group. A particular social group is a group in society, distinguished from the rest of society by some innate or immutable characteristic which is not in itself a fear of persecution. In the applicant’s case, his developmental disability (referred to by the doctors and witnesses as mental retardation) and its sequelae have made him recognisable and cognisable. The Tribunal is satisfied that the applicant is a member of a particular social group of people with disabilities.
Country information

The Tribunal consulted country information from the time that these incidents described above were happening to the applicant in order to assess if there was a common way at that time in which people in Lebanon may have treated the particular social group of people with disabilities. The Tribunal notes the following information:
DFAT understands that people with a disability are particularly vulnerable. For example, the majority of children with special needs are denied access to private education and there are limited public educational facilities that provide targeted support for children with special needs. In addition, commitments by Lebanese authorities to ensure organisations offer employment opportunities to people with a disability are not enforced and public and private infrastructure does not take into account the accessibility needs of people with a disability.
Overall, DFAT assesses that people with a disability face a high risk of official and societal discrimination, and that Lebanese authorities regularly fail to ensure adequate support for people with a disability. (DFAT, Country Information Report: Lebanon, 18 December 2015, paragraphs 3.75-3.76).
Refugee criteria
The Tribunal finds that the applicant suffered a number of incidents, some of which individually constituted serious harm, but taken altogether amounted to persecution, for reason of his membership of a particular social group constituted by people with disabilities. Although this harm was committed by individuals in a group, they were empowered to do so by the prevailing mores and the lack of any protection by the authorities for people with disabilities. The applicant had developed a well-founded fear of persecution before leaving Lebanon.
However, the refugee test is a forward-looking test and the Tribunal must assess what may happen in the reasonably foreseeable future. There has been a marked change in the applicant’s circumstances; and his behaviour if he went back to Lebanon would be different to that from before his departure.
The applicant was ‘teased’ and treated disrespectfully by other children and then, later, fellow workers because he was out and about in their company. The ill-treatment he suffered as an adult occurred when he was on work-sites where he was noticeable as a person with disabilities (that is, as a member of a particular social group). Although his mental and cognitive abilities were impaired, he was a strong and fit young man and was able to work at jobs which required physical strength alone, if his supervisor could give him simple instructions. However, as noted, the situation has changed. The terror induced by the night in the cemetery alone, and the gash on the head requiring stitches, changed the applicant’s cognitive processes, which even before these incidents were not strong. He became less communicative and could no longer follow simple instructions. Furthermore, he has lost the strength and stamina which made him suitable for labouring work: ten years has passed and he has also suffered a broken hip. The applicant is no longer able to work even in the simple employment which sustained him in earlier years.
If he were to return to Lebanon, he would not be out and about. He would not be working. The psychiatrist has made that clear (see paragraph 23 above). He would be confined, presumably at the house of a relative (his mother still has some relatives in [Village] but not any who ever helped her with the applicant). The aunt and grandparents with whom he lived with in the family home are all dead and the house has been pulled down. If no relatives presented themselves, he would presumably be confined by the State. In any case, there is no real chance that the applicant will find himself in a group situation such as a workplace where people would single him out, to tease and belittle and demean him – to treat him in a way that exposed him to serious harm - for reason of his membership of particular social group of people with disabilities.
For these reasons, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group. 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).
Complementary Protection
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 has to consider whether, as a necessary and foreseeable consequence of being removed from Australia to Lebanon, there is a real risk that the applicant will suffer significant harm. As noted in paragraph 32 above, if the applicant were to be removed to Lebanon, he would be confined by unwilling relatives or the State. In either case, the country information indicates he will not receive the care he needs to live with any sort of dignity.
There is a systemic lack of provisions for rights, resources, and services for persons with disabilities in Lebanon. This is due foremost to inaction by the State. The lack of effective remedies leads to impunity for these failings. As a result, persons with disabilities experience widespread discrimination, marginalisation, exclusion, and violence, at the hands of a range of State and non-State institutions and individuals, in the home and outside. This applies to all areas of their lives. (Emilie Combaz, Situation of Persons with Disabilities in Lebanon, p.4).
The information quoted above was from a report commissioned by the UK Government in 2018 but the situation has not improved as current DFAT reporting shows. Indeed, it may have worsened after the huge explosion in Beirut in 2020 and the failure to elect a president. The current country information indicates that the medical and disability sector in Lebanon is currently experiencing huge difficulties:
The Lebanese health system is a mixture of private and public services. The system has been badly affected by the recent economic crisis. International media reported it was ‘on the brink of collapse’ in January 2022, noting an outlux of doctors and nurses as well as widespread corruption. … [A]bout half of the Lebanese population cannot afford healthcare. Even those who can access healthcare are not always able to access medicines, which are either unavailable or very expensive. (DFAT Country Information Report: Lebanon, June 2023, para. 2.15).
With regard to mental illnesses, of which the applicant’s diagnosis of ‘mental retardation’ may be regarded for practical purposes as a sub-set in a community which generally has a poor understanding of the issue, the situation in Lebanon is also very poor.
Mental illnesses, including anxiety, depression and PTSD, are common in Lebanon and have reportedly worsened as a result of multiple nationwide crises. Mental health services are scarce, especially outside Beirut. The economic crisis has led to a mass exodus of mental health professionals from Lebanon. In-country sources report that people with a mental illness have been subject to considerable stigma, especially those with more noticeable symptoms, who are perceived as ‘incompetent, aggressive, violent’ and unable to participate in the community. (DFAT, op.cit. par.2.17).
On the evidence, the Tribunal is satisfied that if the applicant were to be returned to Lebanon, he would be subjected to degrading treatment of a humiliating or debasing nature, diminishing his human dignity, and arousing feelings of fear, anguish or inferiority capable of breaking his resistance. Such treatment constitutes significant harm. Such action would involve an element of intent inasmuch as those who are required to care for the applicant would be doing it grudgingly. If it were the relatives who had to mind the applicant, they would be doing it unwillingly, never having offered any assistance to the applicant during the 24 years in which he lived in the same village. There is a real risk that they would begrudge the applicant for being sent to their place. They could even feel that it was the applicant’s fault that he was in such a dependent situation and intentionally withhold assistance. If the applicant was in the care of the State, the country information indicates that the ‘care’ would be problematic. There is a real risk that the level of humiliation endured by the applicant at the hands of the State would go beyond ‘the inevitable element of suffering or humiliation connected with a given form of legitimate treatment’ (Labita v Italy, European Court of Human Right, Application No 26772/95 [6 April 2000] at 120), where legitimate treatment means the institutional treatment of people with disabilities.
On all the information before it, the Tribunal finds that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Lebanon. Therefore 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.
Sue Zelinka
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.
…

[2024] AATA 4104

22 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies