2007162 (Refugee)

2007162 (Refugee) [2024] AATA 4404 (19 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)
CASE NUMBER:  2007162
COUNTRY OF REFERENCE:                   Zimbabwe
MEMBER:Paul Noonan
DATE:19 September 2024
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 19 September 2024 at 10:12am

CATCHWORDS
REFUGEE – protection visa – Zimbabwe – imputed political opinion – father and brothers refused to join government party and imputed as supporters of opposition party – assault during return visit claimed to be politically motivated – membership of particular social group – separated woman with no family or social support network or work skills or history – Australian citizen child and shared custody arrangement – mental health if separated from child – applied for protection visa after student visa ceased – country information – gender-based discrimination, harassment and violence, with weak state protection – treaty right to enter and reside in neighbouring countries uncertain in practice – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), (5), 5L, 36(2)(a), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AGA16 v MIBP [2018] FCA 628
Chan Yee Kin v MIEA (1989) 169 CLR 379
FCS17 v MHA (2020) 276 FCR 644
MIMAC v SZRHU (2013) 215 FCR 35
Suntharajah v MIMA [2001] FCA 1391
1700730 (Refugee) AATA, 12 July 2022
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 Zimbabwe, applied for the visa on 25 May 2015. The delegate refused to grant the visa on the basis that the applicant would not be at risk of harm for political opinion reasons or because of her gender.
The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country of nationality
The delegate was satisfied that the applicant’s country of nationality is Zimbabwe, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to her Zimbabwe passport, a copy of which is retained on the Department’s systems and file and which expired [in] 2021, and accordingly has assessed her claims with respect to Zimbabwe as the country of reference or receiving country for the purposes of this appeal.
The applicant’s personal background
The applicant was granted a student visa to study in Australia on 15 May 2009. She arrived in Australia [in] July 2009. She returned to Zimbabwe between [June] 2010 and [July] 2010. She again returned to Zimbabwe between [January] 2012 and [February] 2012. Her student visa ceased on 1 September 2014.
It is accepted that the applicant’s father was a [work position] in the Zimbabwean [employer]. She grew up on [work accommodation] in Bulawayo and in her teenage years lived in a family house in the town of [Town], Zimbabwe. She also attended boarding school. All of her siblings now reside outside of Zimbabwe. Two brothers live in [Country 1] and another in [Country 2]. Her father passed away in 2014 and her elderly mother lives in [Town] with her sister.
The applicant is of mixed ethnicity with some Shona and [Country 3] ancestry. Her religion is Christian. She does not have a partner currently. She has [an age]-year-old Australian citizen child who lives with her as a part of a shared custody arrangement with the Australian citizen father. Since being in Australia she has worked as [an occupation].
Department interview and decision
The delegate conducted an interview with the applicant. The Tribunal has listened to that interview. The applicant supplied the Tribunal with a copy of the Department’s decision when she appealed it to the Tribunal.
CLAIMS FOR PROTECTION
In her written protection claim the applicant stated (in summary) that she left Zimbabwe because she feared harm due to being imputed as a supporter of the Zimbabwean political opposition group commonly known as MDC. She also stated that she feared gender-based harm.
ISSUE
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. The Tribunal extensively considered the applicant’s political opinion claims, however, there is no need to detail findings in regard to this claim because it has found the applicant is entitled to protection for reason of her membership of the particular social group as set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant submits that in her last visit to Zimbabwe in 2012 she was sexually assaulted on the street by a group of men. She contends that she believes this was politically motivated. She contends that her family has an adverse profile with the ruling ZANU-PF political party because her father and siblings all refused to join ZANU-PF. She contends as a result they were imputed to be supporters of the opposition MDC party. She contends that she will be any easy target for further sexual assault in Zimbabwe and she greatly fears this should she be required to return there.
The delegate questioned the applicant extensively about this claimed assault. After taking extensive evidence the delegate accepted that the applicant was sexually assaulted as claimed by a group of men on the street in 2012 in [Town], Zimbabwe. The delegate did not accept that the attack was motivated by the imputed political opinion of the applicant. As noted, the Tribunal has listened to the delegate’s interview and the evidence given by the applicant with respect to this assault. The Tribunal also accepts as credible that the applicant was sexually assaulted on the street by a group of men as claimed in 2012 in Zimbabwe.
The Tribunal considered that the applicant presented at hearing with significant residual and intrinsic vulnerabilities. She has a young [child] who is an Australian citizen and the Tribunal accepts as reasonably plausible her contention that her mental health may deteriorate due to any period of forced separation from her child while a relevant visa application is processed.
While the applicant’s mother lives in Zimbabwe she submitted that she is very old and unwell and lives in a small place with her sibling and she lives off her husband’s deceased person’s pension. The applicant submitted that she does not think any meaningful support or accommodation would be afforded to her from this source and she has no other immediate family residing in Zimbabwe. She submitted that she has no work history in Zimbabwe and no readily employable skills there and, as a woman, she would be discriminated against in applying for work. She fears she would not be able to support herself and would have limited to no family support there. She also fears further sexual assault as she would be without meaningful family support and have limited financial resources at her disposal and as such she would be particularly vulnerable.
The Tribunal discussed with the applicant why she did not apply for protection until 2015. The applicant stated that she just kept going with her student visa and only later realised she would need to apply for a protection visa to stay in Australia. As set out in the Migration and Refugee Division Guidelines on Vulnerable Persons, trauma can induce a range of symptoms including poor attention and dissociative symptoms and depression.[1] As the Tribunal has accepted the applicant was a victim of a public sexual assault in 2012 before returning to Australia, it accepts that she was likely suffering such symptoms and it accepts that such a person may not necessarily take logical and expected steps to secure their own safety. As such the Tribunal places no weight on the applicant’s delay in applying for protection with respect to any adverse assessment of the genuineness of her fear of harm. Cumulatively the Tribunal is satisfied that the applicant fears being persecuted for reason of her gender and lack of family support.
[1] Guidelines-on-Vulnerable-Persons.pdf (aat.gov.au)
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal is satisfied that single women in Zimbabwe without family support constitute a particular social group under this criteria. Gender and family location and situation are characteristics, innate and immutable, that are shared by persons of this particular social group and as such s 5J(3) is not at issue in this matter.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: s 5J(4)(b), (c).
The most recent DFAT Report into Zimbabwe assessed that, despite constitutional and legislative protections, women in Zimbabwe face a moderate risk of societal discrimination due to a number of significant disadvantages that include the threat of gender-based violence and other sexually-based harassment (including from state authorities), and long- standing traditional values and gender roles that limit their full participation in the workplace and community. Women in rural communities are particularly disadvantaged.[2]
[2] DFAT Country Information Report, Zimbabwe, 19 December 2019, p.38
The latest US Department of State Report into Zimbabwe reports that 68 per cent of women in Zimbabwe experienced gender-based violence over their lifetime. Women were sexually assaulted while seeking treatment in public hospitals, collecting water from communal boreholes, in religious settings, and riding on public transportation. Violent gender-based offences were often committed in private and without any witnesses. Rape and sexual violence were generally under-reported. Social stigma and societal perceptions that rape was a ‘fact of life’ continued to inhibit reporting of rape. A 2019 survey by Transparency International Zimbabwe found 57 per cent of the women surveyed reported that they had needed to offer sexual favours in exchange for jobs, medical care, and even when seeking placements at schools for their children. Media reported that sexual harassment was prevalent in universities, workplaces and parliament.[3] The UN Committee on the Elimination of Discrimination against Women in its concluding observations published in March 2020 noted reports of a high incidence of sexual harassment of women engaged in the informal economy by municipal police, clients, service providers and male colleagues, as well as the absence of legislation specifically criminalizing sexual harassment in the workplace.[4]
[3] US Department of State 2023 Country Report on Human Rights Practices: Zimbabwe
[4] UN Committee on the Elimination of Discrimination against Women, Concluding observations on the sixth periodic report of Zimbabwe, 10 March 2020, para. 37
The Tribunal is satisfied that the above country information, and the widespread and repeated nature of the harm contained within it, reflects that the feared persecution is for the essential and significant reason of the applicant’s membership of the particular social group ‘single women in Zimbabwe without family support’.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The harms feared by the applicant are rape and significant sexually driven harassment, (which the Tribunal accepts constitutes a threat to her liberty and significant physical harassment and ill-treatment); denial of access to basic services, where the denial threatens her capacity to subsist and denial of a capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist. In making its assessment of serious harm, the Tribunal has also taken the applicant’s personal vulnerabilities into account in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628. It accepts that she would be with limited family support and mentally vulnerable from the stress caused by the separation from her young [child]. It also accepts that she was subjected to sexual assault in the street in Zimbabwe by a group of men. She would be returning to a country where these events happened and where, more broadly, sexual and gender-based violence is widespread. Taking these considerations into account, the Tribunal is satisfied that any future harm or even threats of harm the applicant may experience could amount to serious harm as contemplated in the Act. The Tribunal accepts that the applicant’s feared harm constitutes serious harm.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, which the Tribunal has already found is the case, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal accepts that the applicant would have limited to no family support should she be required to return to Zimbabwe. She would be required to find a job with limited skills and no job history in Zimbabwe. She would be suffering from residual trauma and present with other mental health challenges. She would return without a partner and would need to fend for herself. The Tribunal is satisfied that the applicant’s profile, (when seen in conjunction with the country information about the harm feared), means that there is a real chance of persecution, which may be less than 50 percent but is still a substantial and non-remote chance of serious harm, should she be required to return to Zimbabwe either now or in the reasonably foreseeable future.
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’: FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].
The Tribunal is satisfied that recent country information reflects that the real chance of persecution relates to all areas of Zimbabwe given the longstanding and apparently entrenched and widespread societal attitudes that drive the feared serious harm.

A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
The US Department of State assesses that, while the law criminalised sexual offences, including rape and spousal rape of women, these crimes remained widespread in Zimbabwe. Although sexual offences were punishable by lengthy prison sentences, women’s organisations stated that convictions were rare and sentences were inconsistent. Rape survivors were not consistently afforded protection in court. Women’s rights activists declared the country’s self-defence law was too weak to protect women because the courts could decide whether harm was intended. Women political leaders and human rights activists were targeted physically and online through threats and intimidation via social media. Domestic violence was punishable by a modest fine, a maximum sentence of 10 years imprisonment, or both. Authorities, however, generally considered it a private matter and rarely prosecuted.[5]
[5] Ibid
In addition, during 2023, the authorities are assessed to have undertaken arbitrary or unlawful killings, inhuman, or degrading treatment or punishment, arbitrary arrest and detention and that extensive gender-based violence continued unabated.[6]
[6] Ibid
Given the country information with respect to unabated widespread gender-based violence, a lack of consistent protection for victims of rape and ongoing and egregious human rights violations perpetrated by the Zimbabwean authorities, the Tribunal finds that effective protection measures are not available to the applicant from the feared persecution.
Given all of the above the Tribunal is satisfied that the applicant’s fear of persecution is well-founded.
Having found that the applicant meets the refugee criteria set out at s 36(2)(a), the Tribunal must consider whether the applicant may have a right to enter and reside, whether temporarily or permanently, in any country apart from Australia and as such the exception with respect to third country protection as required under s 36(3).
Zimbabwe is a member of the Southern African Development Community. It is also a member of the African Union. These organisations state that they are working towards the free movement of labour and the peoples of the Member States.[7] [8]
[7] Home | SADC
[8] Protocol to the Treaty Establishing the African Economic Community Relating to Free Movement of Persons, Right of Residence and Right of Establishment | African Union (au.int)
This issue was recently extensively considered in the 12 July 2022 Tribunal case 1700730 by Member Marquard. Member Marquard concluded that there was currently an uncertain right of freedom to move between member states, especially for people without valid documents, and, as such, she was not satisfied that there is a presently existing right, in the sense of a liberty, permission or privilege lawfully given which has not been withdrawn[9] and which is an existing right,[10] rather than a potential right or expectancy to enter and reside on one of the other member states. The Tribunal has reviewed that case and is satisfied its conclusions are sound. The Tribunal has also reviewed the latest published information from these organisations on the above cited organisational web sites.
[9] MIMAC v SZRHU (2013) 215 FCR 35
[10] Suntharajah v MIMA [2001] FCA 1391 (Gray J, 2 October 2001)
The Tribunal could not discern from the latest published information put out by these organisations that a right to enter and reside is presently automatically conferred upon citizens of Zimbabwe with respect to other member states such that the conclusions in the above Tribunal case may no longer be valid. Further, the Tribunal notes that country information reports, such as that published by DFAT, do not indicate there is any such present right conferred on Zimbabwe citizens.
Given the above considerations the Tribunal is not satisfied that the applicant has a right to enter and reside, whether temporarily or permanently, in any country apart from Australia and as such the exception with respect to third country protection contained at s 36(3) does not apply.
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.
Paul Noonan
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 4404

19 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Appeal