2006901 (Refugee)

2006901 (Refugee) [2023] AATA 4027 (14 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006901
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Alison Murphy
DATE:14 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 14 September 2023 at 11:24am
CATCHWORDS
REFUGEE – protection visa – Burma – original claim of fear of harm from money lenders – business loan – information provided by third party without applicant’s knowledge – later claim of pro-democracy and anti-military political opinion – bullied and harassed by pro-military boss – volunteer for charity organisation – protest and social media activity in Australia reported by media – financial donations – returned failed asylum seeker – country information – military coup and armed conflict, human rights and humanitarian law violations – active monitoring and actions against dissidents – low threshold of official suspicion – scrutiny of returnees – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4)(b), 36(2)(a), (2A), 65, 423
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 8 April 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 Burma (Myanmar), applied for the visa on 24 November 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is owed protection by Australia.
The applicant was invited to appear before the Tribunal on 13 September 2023 to give evidence and present arguments. In response to the hearing invitation, the applicant provided further documents and submissions about events that have occurred since the delegate’s decision. Having considered the material submitted by the applicant, as well as publicly available information about the changed political and security situation in Myanmar since the delegate’s decision was made, the Tribunal considered it should make a favourable decision to the applicant on the materials available to it without proceeding with the scheduled hearing.
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.
In the current case, the relevant report is DFAT’s Country Information Report: Myanmar dated 11 November 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
It is not in dispute that the applicant is a citizen of Myanmar. She travelled to Australia on an apparently genuine passport issued to her by the Republic of the Union of Myanmar [in] 2016 and valid until [2021] and a copy of that passport is contained on the Departmental file.
She has at all times stated that she is a citizen of Myanmar and the delegate found she had provided sufficient evidence of her identity which was consistent with her narrative and biometrics. The Tribunal finds the applicant is a Myanmar citizen and has assessed her claims against Myanmar as the country of nationality and the receiving country.
The applicant’s personal background
The applicant is a [Age]-year-old woman from Yangon, Myanmar.
In the visa application she states that she is of Burmese ethnicity and Buddhist religion. She states that she undertook a [Subject] course at [University] in Yangon between [Year] and [Year]. In more recent statements to the Tribunal she elaborates on her personal history and circumstances stating that parents separated many years ago, her mother and [siblings] remain living in Myanmar, while another brother resides in Australia.
The applicant arrived in Australia [in] June 2019 as the holder of a visitor visa. In the visa application she states that she departed from Yangon, Myanmar using her existing Myanmar passport.
The Tribunal accepts each of the above matters to be true.
Claims for protection
In the protection visa application, the applicant stated that she left Myanmar because she borrowed money from a money lender to run her own business. She was unable to cover the debt and the money lenders were always disturbing her until she decided to follow her brother to Australia looking for opportunities to settle her debt. She stated that she cannot relocate because there are not a lot of opportunities in her country, especially outside of Yangon, so she will not be able to earn enough money to settle her debt. She cannot return to Myanmar empty-handed because she is not sure what will happen to her. The authorities may be able to protect her at first but cannot protect her forever and she does not have a clear picture of what will happen to her if she returns.
The delegate’s decision records that the department wrote to the applicant on 5 March 2020, requesting that she provide further information. That letter noted that her claims did not relate to any of the refugee grounds contained in s 5J(1)(a) and invited her to provide any additional information or evidence as to why she would face persecution for reasons of her race, religion, nationality, membership of a particular social group or political opinion. She was also invited to provide further information and evidence as to why she would face significant harm as defined in s 36(2A) if returned to Myanmar.
The departmental file indicates that the applicant responded on 20 March 2020 as follows:
I have received the email from immigration that I have to give the comment for provide the additional information. I facing the persecution if I going back to my Myanmar. In our community we having the affair of the political opinion and it makes my family including the family member have the same impact. I really not secure to get back. Since we having a global infection, I heard my country have facing worst situation, but at the moment, I can't provide the official evidence for this matter. I'm really appreciate if the Government Australia give me the protection in this country. However, with this opportunity given to me, I will turn my life around and give back to Australia who allowed me into their home.
The delegate refused to grant the visa on 8 April 2020, not being satisfied the applicant would face persecution or significant harm if returned to Myanmar.
The review proceeding
It is important to note that there has been a significant change to the security and political situation in Myanmar since the delegate’s decision in April 2020.
In February 2021, Myanmar’s military rejected the landslide victory of Myanmar’s National League for Democracy in the November 2020 election, seizing power of the country and imprisoning NLD leader Aung San Suu Kyi and other NLD. In response, a government-in-hiding was formed by NLD and ethnic party representatives under the banner of the National Unity Government (NUG), announcing an armed revolutionary struggle against the military regime in September 2021. That armed revolutionary struggle continues, along with renewed fighting between the military and ethnic armed organisations.[1]
[1] DFAT’s Country Information Report: Myanmar 11 November 2022 at 2.5
The NUG formed an armed division known as the People’s Defence Force (PDF) and by January 2022 it was reported that the PDF and the military were engaged in violent and lethal clashes across all of the country, including small villages that had not previously seen this kind of conflict. By late 2021, it was reported that the military was destroying entire villages believed to support the opposition, massacring both civilians and opposition fighters. At least 1,500 people were reported killed by the military, and more than 8,000 people arrested, including journalists, medical workers, and NLD politicians.[2]
[2] Lindsay Maizland Myanmar’s Troubled History: Coups, Military Rule and Ethnic Conflict 31 January 2022 at Myanmar’s Troubled History: Coups, Military Rule, and Ethnic Conflict | Council on Foreign Relations (cfr.org)
DFAT reports that within this context, the Myanmar military remains the principal armed actor in the post-coup Myanmar and is ‘overwhelmingly the main violator of human rights and international humanitarian law’. The military regime has no direct control over large parts of the country, with an estimated one-third of the country being in the hands of ethnic rebel groups, and the ‘Bamar heartland’ (including Mandalay, Yangon, Sagaing and Magway), once relatively peaceful, has seen a sharp rise in violence, as local PDFs and ethnic armed organisations clash with security forces, and the military regime targets civilians they perceive as supporting their enemies.[3]
[3] DFAT’s Country Information Report: Myanmar 11 November 2022 at 2.30–2.31
Since the coup, Yangon and Mandalay have seen persistent violence for the first time in recent history, and the Sagaing and Magway regions, where the Bamar ethnicity is in a majority and which have been historically largely peaceful, have seen a significant increase in violence.[4]
[4] DFAT’s Country Information Report: Myanmar 11 November 2022 at 2.37–2.38
Before the Tribunal, the applicant made new claims for protection. In a written statement dated 16 July 2022 she informed the Tribunal that she had recently realised that most of the information provided in the protection visa application was incorrect and was provided without her knowledge by the person who helped her to lodge the application, whom she was no longer able to contact. She provided updated details of her personal information, educational and employment history and family composition and stated that the real reasons she left Myanmar were set out in her written statement dated 4 June 2021.
In that statement, the applicant claims to fear serious harm on return to Myanmar based upon her long-standing and well-known political opinion against the military dictatorship as well as her involvement with [Organisation 1]. In particular she claims that while growing up with her mother, she was taught that the military were using an extreme nationality political agenda to provoke tensions in their attempt to prolong their dictatorship. She states that while she is a Buddhist, she can never accept some monks and their followers who are backed by the military to be followers of the Lord Buddha.
The applicant claims to have been bullied and sexually harassed by her pro-military boss while working for [Employer] during her university studies leading to her ultimate dismissal in 2004. She claims that she was unable to find paid employment after this, leading to her volunteer work at [Organisation 1] between 2006 and 2018 while she started a [store] which she then converted to [another product] store. She claims that she borrowed the money to start that shop and it has since been repossessed by her creditors and that since the February 2021 military coup her family have gone into hiding. She claims [Organisation 1]’s office was raided in March 2021, its volunteers and staff assaulted and its computers confiscated. Volunteers and [staff] were charged under Article 505(a) of the Penal Code and forced into hiding. She claims she will not be safe anywhere in Myanmar due to her long-standing and well-known pro-democracy political opinion, her volunteer work at [Organisation 1] and her involvement in protests against the military coup in Australia.
In support of these new claims the applicant has provided an Honour Certificate from [Organisation 1] together with an English language translation as well as photographs and a link to video clip posted on [Social media] of her participation in a protest in [City] in February 2021 against the military coup. She claims that the video footage was aired on [News source] in Australia and subsequently shared by the Burmese community in Australia and around the world on [Social media]. Shortly before the scheduled hearing, the applicant provided a large number of photographs from [Social media] of protest activities against the military coup in which she participated in Australia in February 2021 as well as [Social media] posts and re-posts on her [Social media] account that are critical of the military coup and supportive of democracy in Myanmar. She also provided a membership card form [ [a named organisation] and acknowledgements of financial donations to [named organisations].
Section 423A of the Act requires the Tribunal to draw an unfavourable inference as to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. The applicant’s new claims can be separated into events that took place prior to her departure from Myanmar and those that have taken place since the delegate’s decision.
In relation to the former, the applicant states that incorrect information was provided without her knowledge by a person who was not a registered migration agent. Ultimately the Tribunal considers it is unnecessary to consider the credibility of the applicant’s new claims in so far as they relate to events said to have occurred before the applicant left Myanmar in 2019, given the significantly changed political and security situation in Myanmar since the delegate’s decision.
In relation to the applicant’s sur plus claims about her political protest activities in Australia, the Tribunal accepts that the applicant participated in protests following the military coup in Myanmar in February 2021 and that her activities have been documented on [Social media] and footage aired on the news and online. The Tribunal also accepts that she has posted and re-posted comments and articles on [Social media] that are critical of the military coup and regime and made financial donations to organisations promoting democracy in Myanmar.
The Tribunal accepts the political views expressed by the applicant to be genuinely held, noting that protests such as that attended by the applicant occurred across Australia in response to the military coup and the violence that immediately followed.[5] In the two years since the coup Myanmar’s military regime are reported to be employing a ‘four cuts’ strategy – simultaneously conducting indiscriminate airstrikes and artillery shelling, mass burnings of villages to displace civilian populations and the denial of humanitarian access.[6]
[5] Australian government condemns violence against Myanmar protesters against military coup - ABC News
[6] Ibid at para 6
In its most recent Country Information Report in relation to Myanmar, DFAT provided the following assessment of the prevailing conditions in the country:
Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in antiregime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest) … Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.[7]
[7] DFAT, DFAT Country Information Report – Myanmar, November 2022 (version 2) [3.47]
DFAT assessed:
… anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.[8]
[8] Ibid [3.51]

In relation to failed asylum seekers, DFAT reports that:
given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries …, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[9]
[9] Ibid [5.25]
Other sources report that representatives of the military junta stated publicly in September 2022 that showing moral support for the democracy movement was an act of terrorism, threatening jail terms of up to 10 years just for sharing pro-democracy content on social media, and even longer for those who provided even small amounts of money.[10]
[10] Martin Petty and Ed Davies, ‘Myanmar Military Threatens Jail for Online ‘Likes’ for Opponents’, Reuters (online) 20 September 2022 < 20/?fbclid=IwAR1AHIyI780B3woJ_eMMc4ICl9IKJe0PfPsdst8pTJNJMPHikowzSleLmdA>
In February 2023 the UNHCR reported:
People in all parts of Myanmar, in the two years since the military coup, remain exposed to daily human rights violations. In addition to the use of violence by the military itself, some pre-existing conflicts between the military and ethnic armed organizations have been reignited and violence has spread nationwide, dramatically changing the conflict landscape in Myanmar and heightening concerns for the protection of civilians. Global advocacy for peace and restraint have remained unheeded and the military, emboldened by absolute impunity, has consistently shown its disregard for international obligations and principles.[11]
[11] Report of the United Nations High Commissioner for Human Rights Situation of human rights in Myanmar since 1 February 2022 2 March 2023 at para 5
In light of the country information referred to above, the Tribunal accepts the applicant will not voluntarily return to Myanmar. The applicant’s Myanmar passport is expired in [2021] and she will need to be issued a travel document if returned involuntarily. In these circumstances, the Tribunal accepts her status as a failed asylum seeker who has been resident in Australia for some years will become known to the Myanmar military authorities.
As cited above, DFAT reports that anyone suspected of opposing or criticising the military regime in Myanmar is at high risk of official discrimination and violence including detention, disappearance, torture and extrajudicial killings. Even the use of ‘foreign’ apps such as Facebook, or having pictures of Aung San Suu Kyi on a phone, is sufficient grounds for being suspected of sympathising with the political opposition and risks detention. [12] The applicant’s [Social media] account is in her own name and contains frequent posts that are opposed to the military and supportive of democracy, the National Unity Government and Aung San Suu Kyi.
[12] DFAT, DFAT Country Information Report – Myanmar, November 2022 (version 2) [3.47]
Further the Tribunal gives weight to DFAT’s assessment that the high level of scrutiny of people arriving and departing the country means that a failed asylum seeker returning from Australia would be considered to have links to Western countries and imputed with an anti-military regime political opinion with a consequent high risk of official harassment, detention and violence, regardless of why that person originally left Myanmar.
For these reasons, the Tribunal finds that if the applicant were to return to Myanmar, there is a real chance that she would be subjected to threats to her life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act and that the essential and significant reasons for that harm is the applicant’s actual and imputed political opinion and her membership of the particular social group of failed asylum seekers in Myanmar. As the agent of persecution is Myanmar’s military regime, the Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar and that effective State protection against the harm she fears is not available to her. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Myanmar.
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.
Alison Murphy
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 4027

14 September 2023

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