2007266 (Refugee)

2007266 (Refugee) [2020] AATA 4150 (7 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007266
COUNTRY OF REFERENCE:                   United Kingdom
MEMBER:Christopher Smolicz
DATE:7 August 2020
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 7 August at 4:52pm

CATCHWORDS
REFUGEE – protection visa – United Kingdom – complementary protection – fear of degrading treatment or punishment – applicant suffers from multiple health conditions – greater risk of more serious illness if infected with coronavirus – claim of inadequate health care due to Covid-19 pandemic – hospitals overwhelmed – herd immunity – no family, immediate relatives or established social networks – ability to subsist and find employment and accommodation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499, 501
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB [2013] FCAFC 33
SZRSN v MIAC [2013] FCA 751
SZRSN v MIAC [2013] FMCA 78
SZSPE v MIBP [2013] FCCA 1989
SZSPE v MIBP [2014] FCA 267
SZTAL v MIBP (2016) 243 FCR 556
SZTGM v MIBP (2017) 262 CLR 362
SZTUL v MIBP [2014] FCA 1427
SZTUL v MIBP [2014] FCCA 1985
WZARI v MIAC [2013] HCASL 201
WZARI v MIMAC [2013] FCA 788
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 April 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
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 (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) of the Act, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is [age] years of age. He was born in Birmingham, UK and declared that he was a British citizen. He first entered Australia in 1967 aged [age] when his parents emigrated from the UK. The applicant has not travelled outside Australia. His parents have remained in Australia.
On 22 March 2018 the applicant’s [Permanent] visa was cancelled under s.501(3A) of the Act as a result of him having a substantial criminal record and being sentenced to serve a term of imprisonment of more than 12 months.
The applicant applied to the AAT General Division to review the Department’s decision to cancel his visa. [In] June 2019 the Tribunal affirmed the non-revocation of the visa.[1]
[1] [Source deleted].
[In] October 2019 the Federal Court NSW upheld non-revocation of the [Permanent] visa.
[In] March 2020 the Full Court of the Federal Court NSW upheld non-revocation of the [Permanent] visa.
On 6 April 2020 the applicant applied for a protection visa which is the subject of this review application. The applicant provided the Tribunal with the delegate’s decision refusing to grant him the protection visa for the purpose of this review application. He did not make any statement or statutory declaration in support of the application. The applicant’s representative has made claims under the ‘complementary protection’ criterion. He did not make claims under the refugee criterion.
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.
Summary of substantive claims
·     It is submitted that the applicant’s age and health status will expose him to serious harm, given the high COVID-19 infection rates in the UK.
·     The UK’s capacity to provide social support services such as accommodation and medication have been adversely affected by the COVID-19 pandemic.
·     The applicant fears being unable to access the psychological and psychiatric services that he claims he needs.
·     The applicant has no family, immediate relatives or established social networks in the UK. He fears being socially isolated in the UK because he has not returned to the UK since he came to Australia when he was [age].
·     The applicant has a past history of illegal substances abuse.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Tribunal hearing
The applicant appeared before the Tribunal by video conference from [named] Detention Centre on 3 June 2020 to give evidence and present arguments. The applicant was represented in relation to the review.
The Tribunal questioned the applicant about his education, work, health and family background. The applicant said he left school in year eight, then attended TAFE and has worked as a [Occupation 1] in Australia. He has gained practical experience as a [Occupation 2] and has [worked in that role] in the past.
He has been in several relationships in Australia and told the Tribunal that he has fathered [number] children to different partners, all except two of whom are now adults. With his most recent partner, from whom he is now separated, the applicant has two children, a son who was born in [year] and a daughter who was born in [year]. His children reside with his former partner.
He claims to have no assets but was making child support payments before he was detained.
He had one uncle in the UK who contracted COVID-19 and died. His mother’s family have migrated to [Country 1] and he maintained that he has no family left in the UK.
The applicant said he had several health problems and was being prescribed medication for back pain, diabetes type 2, high blood pressure and cholesterol. He smokes tobacco, is overweight and has problems with his knees. The applicant said he injured his back in a work accident when he was working as [Occupation 1] many years ago. He was prescribed methadone for his back pain, but his body did not react well to it and he has changed his medication since he was in immigration detention. He thinks that he will require back surgery at some point to deal with the pain. He ceased using illegal drugs four years ago when he was imprisoned. He does not take opioids.
The applicant said he has been suffering from depression for most of his life but has never obtained treatment. Since he was placed in immigration detention, he has had the opportunity to see a psychologist. The Tribunal invited the applicant to provide any psychological reports he considered relevant to his application.
The Tribunal questioned the applicant about why he fears returning to the UK. The applicant said he has not returned to the UK since he first arrived in Australia when he was [age]. He claims to have no family support in the UK. He is terrified of being sent to the UK because of the COVID-19 pandemic. He is worried about the UK government’s initial ‘herd immunity’ response to the virus and how they put in place restrictions late and are now lifting restrictions too early. He is worried about the National Health Service (NHS)’s ability to cope with the outbreak. He fears that due to his various medical complaints he is at greater risk of dying from the virus should he contract it. He fears he will be unable to obtain medical treatment for his current medical conditions because the outbreak has placed strain on the NHS.
The Tribunal was provided with written submissions made by the applicant’s representative which refer to the applicant’s medical conditions and numerous media reports that are critical of the UK Government’s response to the COVID-19 pandemic.[2]
[2] See attachments to submissions dated 31 March 2020 and an email dated 28 May 2020.
The Tribunal advised the applicant’s representative that it had made enquires with the Department and there were no medical reports relevant to the applicant on the protection visa file which was before the Tribunal. The representative confirmed that he did not provide any medical or psychological reports to the Department in support of the protection visa application because he assumed, they would be part of the Department’s file. The Tribunal provided the applicant’s representative time after the hearing to obtain any medical reports and details of the applicant’s medical conditions which were considered relevant to the application. On 31 July 2020 the Tribunal was provided with the applicant’s medical records prepared by International Health and Medical Services since he has been placed in immigration detention.
Findings
The Tribunal finds the applicant was born in Birmingham, UK. He first entered Australia in 1967 aged [age] when his parents emigrated from the UK and he remains a citizen of that country.[3] In this case, the Tribunal finds that the applicant is a British national and that the UK is the ‘receiving country’ for the purposes of s.5(1) of the Act.
[3] British Nationality Act 1981 >
The Tribunal has considered the applicant’s claims and finds the applicant does not fear persecution in the UK because of his race, religion, nationality, membership of a particular social group or political opinion: s.5J(1)(a) of the Act. Further, the Tribunal finds that the applicant does not fear persecution that involves systematic and discriminatory conduct under s.5J(4)(c). The Tribunal finds he is not a refugee. It was submitted by the applicant’s representative that the applicant relies on the ‘complementary protection’ criterion and fears that he will be subjected to ‘degrading treatment or punishment’ if he was to return to the UK: (s.36(2A)(e)).
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).
In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the UK, there is a real risk that the applicant will suffer significant harm.
In MIAC v SZQRB, the Full Court of the Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4]
[4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The types of harm that will amount to ‘significant harm’ are exhaustively defined by s.36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The definitions of ‘cruel or inhuman treatment or punishment’ require that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. It is not suggested that the applicant will be arbitrarily deprived of his life or the death penalty will be carried out or he will be subjected to torture as a necessary and foreseeable consequence of the applicant being removed from Australia to the UK.
It was submitted by the applicant’s representative that the element of ‘intention’ required by s.5(1) of the Act with respect to ‘degrading treatment or punishment’ can emanate from the state (in this case the UK authorities). The agent referred the Tribunal to reports that confirm that as UK hospitals become overwhelmed with COVID-19 patients, the NHS are having to make choices about postponement of treatment to cancer patients and others requiring elective treatment. It was submitted there is evidence that the UK authorities deliberately withheld services in response to the initial confused application of the herd immunity principle. It was submitted: ‘The herd immunity principle was abandoned in circumstance where it has been recognised as being too late to have effectively dealt with the tidal wave of infections and mortality…..It is in this context that the possible homelessness and social isolation would take place - that is the exacerbation of the consequence of an unsuccessful pre-formulated Government policy that has resulted in what is alleged to be the predictable/intentional infliction of harm.’ It was submitted: ‘that the harm faced from mental illness will distinctly emerge by virtue of the character of the receiving country, that is the deficiencies in care rather than acts casually [sic] connected from depression or mental illness arising on return to the receiving country.’
The Tribunal has considered relevant authorities and notes that intent, in the context of s.5(1), requires an actual, subjective intention on the part of a person to bring about the suffering by their conduct.[5] In SZTAL v MIBP, a majority of the High Court rejected the contention that knowledge or foresight of a result establishes the necessary intention element of the definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.[6] Mere negligence, without more, will also not establish the necessary intention element of any of the relevant definitions in s.5 of the Act.[7]
[5] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.
[6] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362.
[7] See SZSPE v MIBP [2013] FCCA 1989 at [68] and [72] (upheld on appeal SZSPE v MIBP [2014] FCA 267) and SZTUL v MIBP [2014] FCCA 1985 at [31]–[32] (leave to appeal this judgment was dismissed: SZTUL v MIBP [2014] FCA 1427).
The Tribunal has considered the applicant’s medical records and finds that they confirm the applicant’s evidence regarding his various medical conditions, such as diabetes, obesity, chronic back and hip pain, hypertension, sleep apnoea, superficial vein thrombosis, varicose veins, hypercholesterolemia and a number of skin issues. It was also submitted by the agent that the applicant has a history of lupus. He has been taking methadone for a protracted period and he has previously been prescribed Naloxone ‘which amplifies the level of drug abuse’. He is at risk of thrombosis, which makes air travel dangerous. The Tribunal also notes that in May 2019 the applicant was diagnosed by a psychiatrist with a major depressive disorder due to ongoing stressors related to immigration and family issues. The applicant was assessed at the low risk of self-harm and prescribed medication.
The Tribunal accepts that the act of returning to the UK may exacerbate his mental and physical health issues. The Tribunal has also had regard to the applicant’s current health issues and his age and accepts he is at greater risk of more serious illness if infected with coronavirus (COVID-19).[8] The Tribunal accepts the applicant has no family, immediate relatives or established social networks in the UK and that he fears being socially isolated in the UK because he has not returned to the UK since he came to Australia when he was an infant. The Tribunal has considered all these factors cumulatively in assessing whether there is a real risk that the applicant would suffer significant harm if he was to return to the UK.
[8] >
In light of the applicant’s various medical complaints it is appropriate to have regard to the health care that would be available to the applicant in the UK during the COVID-19 pandemic. The Tribunal notes that the NHS is the publicly funded healthcare system in England, and one of the four NHS systems in the UK. Hospital treatment provided by the NHS in England is free to people classed as ordinarily resident in the UK.[9] It is reported that ‘ordinarily resident’ in the UK includes people who are living and working in the UK who are British citizens, naturalised within the UK or settled within the UK (commonly referred to as holding Indefinite Leave to Remain).[10]
[9] >
The Tribunal finds the applicant will be able to register and access the NHS if he returns to the UK. The Tribunal has had regard to the UK NHS website which provides information and advice about COVID-19 and specifically recognises people at higher risk from coronavirus including people with health conditions and people at moderate risk (clinically vulnerable).[11] The Tribunal notes that the NHS offers assistance and treatment for people with drug addictions[12] and runs Diabetes Prevention Programmes targeting people identified as being at high risk of developing type 2 diabetes.[13] The Tribunal notes that mental health services are free under the NHS, however in some cases patients may require a GP referral. This includes services for drug problems as well as NHS psychological therapies services.[14] The Tribunal finds that the applicant would have access to adequate health care in the UK.
[11] Coronavirus (COVID-19) - NHS
[12] type="1">
The Tribunal has had regard to the various media reports provided by the applicant and accepts that the NHS is currently under strain due to the COVID-19 pandemic. The Tribunal accepts that elective surgery and some cancer treatments have been postponed and are currently not available due to the need for the NHS to prioritise its health services.[15] The Tribunal notes however that these are issues which impact on the whole of the UK population generally and are not just faced by the applicant personally. Importantly, the Tribunal also notes that UK authorities are attempting to address these concerns and reports confirm that the UK government has pledged an extra £5 billion in funding to the NHS to ease the strain during the COVID-19 pandemic.[16]
[15] ; >
In assessing the applicant’s ability to subsist and find employment and accommodation in the UK the Tribunal is conscious that the global economy is in the midst of the most severe economic downturn of modern times. The Tribunal is acutely aware that this is affecting the employment levels and economies of all countries, including high income countries such as the UK.[17] The UK is also likely to experience a further economic contraction in 2021 due to the end of the transition period with the EU (Brexit).[18] The Tribunal notes however that the UK has announced a number of policy initiatives and has put in place a number of support schemes to help the country recover from the economic fallout caused by the pandemic.[19] The UK also has a welfare system in place and has increased spending in some areas to support the most vulnerable in society, although critics claim that successive cuts to the welfare system over the past decade have left it insufficient to help all those in need.[20]
[17] ‘Global economy will take $12tn hit from coronavirus, says IMF', The Guardian, 24 June 2020, 20200724111331; 'Hard Times: UK Economic Outlook', KPMG, June 2020, 20200724112112.
[18] ‘Hard Times: UK Economic Outlook', KPMG, June 2020, 20200724112112.
[19] ‘Hard Times: UK Economic Outlook', KPMG, June 2020, 20200724112112; ‘Economic update: Unprecedented fall in GDP marks low point of recession’, House of Commons Library, 2 July 2020, 20200724111625.
[20] ‘Coronavirus: Increases to benefits payments’, House of Commons Library, 27 May 2020, 20200724135926; ‘UK: Children in England Going Hungry with Schools Shut’, Human Rights Watch (HRW), 27 May 2020, 20200724140139. See also: ‘Record numbers of people in Britain can’t afford food – lifting lockdown won’t change that’, New Statesman, 3 July 2020, 20200724084624.
Reports confirm that the UK is commonly described as a ‘welfare state’, meaning that there are safety nets in place to take care of vulnerable members of society when they are in need. Information on available benefits can be found on the UK Government website. These include: Universal Credit (which replaced a number of other benefits); tax credits; Jobseeker’s Allowance and low income benefits; carers and disability benefits; Child Benefit; benefits for families; heating and housing benefits.[21] A brief overview of the available benefits was found on the Chartered Accountants Benevolent Association (CABA) website.[22]
[21] See: ‘Benefits’, UK Government website, undated.
[22] The CABA website states that they are a charity ‘that supports the wellbeing of the chartered accountant community. We provide lifelong support to past and present ICAEW members, ACA students, past and present ICAEW staff, and their close family members.’ (‘About Us’, CABA website, undated).
The Tribunal accepts the applicant may initially struggle to find suitable employment and accommodation during the economic downturn caused by the pandemic. The Tribunal finds the applicant has past work experience and qualifications obtained in Australia which would place him in a strong position to obtain suitable employment in the UK. The Tribunal also finds that the applicant is eligible to access government welfare services while he looks for suitable employment and accommodation.
The Tribunal is also aware that the applicant has a family in Australia which includes two young children. As detailed above, the Tribunal accepts that the act of being removed from Australia may exacerbate his mental and physical health. The Tribunal finds that the mother of the applicant’s two youngest children is an Australian citizen and the children are not applicants before the Tribunal. The judgments in SZRSN v MIAC and GLD18 v MHA confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s.36(2A).[23]
[23] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–-[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).
The Federal Court noted that s.36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’.[24] As detailed above, s.5(1) requires an actual, subjective, intention on the part of a person (in this case the UK authorities) to bring about the suffering by their conduct.[25] The Tribunal does not accept that there is any actual or subjective intent on the part of the UK authorities to cause the applicant significant harm as a consequence of the government response to the COVID-19 pandemic. Again, the Tribunal notes that the information before it appears to indicate that the UK Government is attempting to improve access to medical treatment and has promised increased funding for the NHS. Accordingly, the Tribunal does not accept that the applicant will suffer significant harm as a consequence of limited medical facilities or other treatment in the UK.
[24] SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [64].
[25] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. This upheld the Full Federal Court judgment in SZTAL v MIBP (2016) 243 FCR 556.
The Tribunal accepts that the applicant is anxious and fearful about the possibility that he may contract COVID-19 if he returns to the UK. The Tribunal has considered the exception under s.36(2B)(c) and finds the real risk of the applicant contracting the virus is one that is faced by the population of the UK generally, and not just the applicant personally.
The Tribunal also finds that the applicant’s psychological health is not of itself grounds for granting complementary protection. Further, the Tribunal does not accept that there would be any intention on the part of another person or the UK authorities to cause him significant harm because of his psychological condition.
In conclusion, looking to the reasonably foreseeable future, the Tribunal is not satisfied that the consequences of the UK Government’s response to the COVID-19 pandemic can be characterised as an act or omission that is intended to cause the applicant pain/suffering/extreme humiliation, or a deliberate act or omission leading to the arbitrary deprivation of the applicant’s life.
The Tribunal does not accept on the evidence before it, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the UK, there is a real risk that he will suffer significant harm.
There is no suggestion that the applicant satisfies s.36(2) based on being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christopher Smolicz
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.
…

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Immigration
Statutory Interpretation

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Citations

2007266 (Refugee) [2020] AATA 4150

Cases Citing This Decision

Cases Cited

Statutory Material Cited

SZSPE v Minister for Immigration & Border Protection & Anor [2013] FCCA 1989

SZSPE v Minister for Immigration and Border Protection [2014] FCA 267

SZTUL v MIBP [2014] FCCA 1985

[2020] AATA 4150

7 August 2020

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Remedies