2007474 (Refugee)

2007474 (Refugee) [2024] AATA 3679 (1 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007474
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Siran Nyabally
DATE:1 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 August 2024 at 2:00pm
CATCHWORDS
REFUGEE – protection visa – Sri Lanka – political opinion – active member of opposition party – organised meetings and rallies, and campaigned against powerful local leader – kidnapped, abused and threatened – loan from money lenders to come to Australia – threats to applicant and family – no appearance at scheduled and reinstated hearings – responsibility to specify claims and provide evidence – vague and uncorroborated claims and evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 426A(1A)(b), (1C)(a), 441A(5)
Migration Regulations 1994 (Cth), Schedule 2
CASES
DFQ17 v MIBP [2019] FCAFC 64
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (Act).
APPLICATION FOR REVIEW
The applicant applied for the protection visa on 6 March 2015. The delegate refused to grant the protection visa on 16 March 2018.
The applicant applied for review of the delegate’s decision on 25 April 2020.[1]
CLAIMS AND EVIDENCE
[1] The applicant was originally notified of the delegate’s decision on 16 March 2018, but the notification letter did not ‘state’ the time in which the application for review may be made: DFQ17 v Minister of Immigration and Border Protection [2019] FCAFC 64. Accordingly, the 16 March 2018 notification letter was invalid, the applicant was not notified of the decision until 1 April 2020, and applied for review within the 28-day period prescribed by s 412(1)(b) of the Act and r 4.31(2) of the Migration Regulations 1994.
Before the Department
Protection visa application
The applicant claims to be a [Age]-year-old Sri Lankan citizen who was born in [City], Sri Lanka. In his protection visa application form, the applicant claimed that he had left Sri Lanka to avoid torture by the United National Party (UNP) political party, and because he feared being harmed by loan sharks to whom he owed money.
The applicant claimed that while in Sri Lanka he was an active member of the Janatha Vimukthi Peramuna (JVP) political party, who were challenging the government against corruption. He started attending JVP meetings when he was [age], and would organise meetings and rallies all over the country, including by campaigning against a powerful political leader in the Western Province of Sri Lanka. Roughly 2 years after the applicant began working with the JVP, he was kidnapped by members of the UNP while leading a poster campaign. The applicant was held for several months, over which time he was subject to physical abuse and death threats. The applicant eventually escaped and went to reside in the eastern part of Sri Lanka. After several months he was re-captured, physically abused, and threatened with death if he became involved in JVP activities again. The applicant decided to return to his home area to focus on his studies. After several months, the applicant began organising JVP meetings again and began to receive more death threats. His family encouraged him to leave Sri Lanka for his safety. The applicant feared that if he returned to Sri Lanka, that he would be killed for revenge by UNP members or supporters, as the UNP was now in power. He could not obtain protection from the authorities because the laws were ‘corrupted’ and the authorities were required to follow the orders of the leading party. He had previously lodged many complaints but had been ignored ‘due to the involvement of politics’.
The applicant also claimed to fear harm on the basis of his debts in Sri Lanka. He claimed that he had borrowed $12,000 in order to come to Australia. The loan was subject to 100% interest per year on the basis that the applicant would pay it back within months. The applicant was unable to repay his debt, so borrowed more and more money from other loan sharks. Despite paying an ‘enormous amount’ in interest, the applicant’s debt was over $41,000 by the time he applied for protection. He had been receiving threatening calls from loan sharks for 4 years, who demanded that he pay back the money he owed them as soon as possible and informed him that they would assault him and his family if he returned. The applicant feared that he would be assaulted, tortured or killed by his debtors if he returned to Sri Lanka.
Supporting documents
In addition to his protection visa application forms and accompanying statement, the applicant provided the Department with a copy of his Sri Lankan passport.
Protection visa application interview
On 24 January 2018 the Department wrote to the applicant, inviting him to attend an interview scheduled for 9 February 2018. The applicant did not attend the interview and did not contact the Department to request that the interview be rescheduled.
Delegate’s decision
The delegate was not satisfied that the applicant was owed protection, finding that he had provided ‘minimal and vague’ information about his claims and no corroborative evidence.
The delegate was prepared to accept that the applicant may have participated in political activities prior to his departure in 2008, but found that the political landscape in Sri Lanka had since improved and that he was unlikely to be of ongoing interest to the Sri Lankan authorities.
The delegate expressed doubt about the credibility of the applicant’s claim to fear harm from loan sharks, but ultimately found that the Sri Lankan police and other law enforcement institutions could provide him with adequate protection.
Before the Tribunal
On 25 April 2020, the applicant applied for review of the delegate’s decision and provided the Tribunal with the delegate’s notification letter and decision record.
Pre-hearing submissions
On 6 June 2024, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 27 June 2024.
On 28 June 2024, the Tribunal dismissed the application pursuant to s 426A(1A)(b) of the Act as the applicant did not appear at the scheduled hearing.
On 11 July 2024, the applicant wrote to the Tribunal by email to request that the application be reinstated. Later the same day, the Tribunal reinstated the application for review pursuant to s 426A(1C)(a) of the Act and invited the applicant to attend a rescheduled hearing on 30 July 2024 at 12:30pm (AEST). The invitation stated that if he did not appear at the hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before it. The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing to the telephone number provided in the review application (nominated telephone number).
At 12:33pm and 1:00pm on 30 July 2024, a Tribunal officer unsuccessfully attempted to contact the applicant on the nominated telephone number. The Tribunal officer left a voicemail message requesting that the applicant urgently contact the Tribunal to explain his non-appearance at the scheduled hearing and noting that if he did not appear at the hearing, the Tribunal may proceed to make a decision on his application. As at the time of this decision, the Tribunal has not received any explanation for the applicant’s non-appearance nor any request for an adjournment of the 30 July 2024 hearing.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing.
In these circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant has provided a copy of his Sri Lankan passport. He has consistently claimed to be from Sri Lanka. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a citizen of Sri Lanka and has assessed his claims against that country.
The applicant’s fear of harm
As the applicant did not attend the Tribunal to elaborate on his claimed fear of harm in Sri Lanka, the Tribunal has considered his claims outlined in his protection visa application and accompanying statement. In those documents, the applicant has claimed to fear harm because of his pro-JVP political activities, and on the basis of his debts to various loan sharks.
FINDINGS
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicant. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).
Is the applicant a refugee?
There are significant gaps in the applicant’s evidence. Without further information to address these gaps, the Tribunal not satisfied that there is a real chance the applicant will be harmed on the basis of his actual or imputed political opinion, and/or by loan sharks or any other debtors in Sri Lanka.
Political opinion
The applicant has claimed that he was threatened, kidnapped and physically abused in Sri Lanka because of his pro-JVP political opinion and activities, but has provided no information to contextualise this claim. The applicant has not explained why he was motivated to support the JVP, what work he did with the JVP, what specific mistreatment he suffered because of his support for the party, and/or why he believes that his political opponents had or will continue to have any ongoing interest in him. Without this information the Tribunal does not accept that the applicant has or had a pro-JVP political opinion, or that he is or was a member or supporter of the JVP.
In his written claims, the applicant stated that the JVP ‘were supposed to challenge the government against corruption’, that he began attending JVP meetings when he was 16 years old, and that he helped organise meetings and rallies throughout the country ‘to get the young people to support us’. The Tribunal has no detailed information about when and why the applicant was first invited to these meetings, who attended and what was discussed at his first JVP meeting, how the subsequent JVP meetings and rallies were organised, what activities were conducted to encourage young people to attend the meetings and rallies, where and when these meetings and rallies were held, how many participants attended the meetings and rallies, and what the applicant’s role was in the meetings and rallies. Without this information the Tribunal does not accept that the applicant was involved in the JVP party or its activities.
The applicant has claimed to have been kidnapped and held at the private residence of a member of the opposition party for several months. The Tribunal has no information about when the kidnapping took place, how he was kidnapped, whether his family or other JVP members were informed of his kidnapping or how the applicant managed to escape. The applicant has made a general reference to having lodged complaints with police, but has not specified whether he reported his kidnapping to authorities, and if he did, the response. Without this information the Tribunal does not accept that the applicant was kidnapped in Sri Lanka.
The applicant also claimed that following his escape he fled to the east of the country, but was found after several months, threatened, and physically harmed. The Tribunal has no information about where in the ‘east of the country’ the applicant fled, when and where he was found, who found him, how he was physically abused or whether he was injured as a result of the abuse. The applicant has made a general reference to having lodged complaints with police, but has not specified whether he reported his kidnapping to authorities, and if he did, the response. Without this information the Tribunal does not accept that the applicant fled to the east of Sri Lanka but was found and assaulted by his opponents.
The applicant claimed that after he was abused and threatened in the east of Sri Lanka, he returned to his ‘usual residence’ to focus on his studies, but resumed his work with the JVP after being invited to participate in a campaign being conducted in his local area. The applicant did not explain why he opted to resume his work with the JVP after being kidnapped, assaulted and subject to death threats, nor did he provide any details about the meetings he organized or the content and mode of delivery of the death threats he continued to receive. The applicant has made a general reference to having lodged complaints with police, but has not specified whether he reported these death threats to authorities, and if he did, the response. Without this information, the Tribunal does not accept that the applicant resumed his involvement with the JVP and/or participated in political activities, or that he received death threats from his political opponents.
In the absence of the information referred to above, the Tribunal does not accept that the applicant is or was ever a supporter or member of the JVP, or any other political party in Sri Lanka. The Tribunal does not accept that any political opponents, the Sri Lankan government or the Sri Lankan authorities had or have any interest in him. The Tribunal does not accept that the applicant is or was of interest to anyone on the basis of his actual or imputed political opinion, that he was threatened, abused or kidnapped in Sri Lanka, and/or that there is a real chance that he will be harmed in Sri Lanka on the basis of his actual or imputed support for the JVP or any other political party, now or in the reasonably foreseeable future.
Debts/loan sharks

The Tribunal also has very little information about the applicant’s debts and/or his claimed fear of his debtors. The applicant has stated that he originally borrowed $12,000 and now owes ‘nearly $40,000’ in loans and interest to loan sharks, but has not provided the names of the loan sharks to whom he owes money or stated when each debt was accrued, whether any repayments were made, when those repayments were made and to whom, provided any corroborative evidence of the claimed threats he has received or specified how much he owes each of the remaining debtors. Without this information, the Tribunal does not accept that the applicant borrowed money in Sri Lanka, and/or that he has any outstanding debts in Sri Lanka.
Accordingly, the Tribunal does not accept that the applicant has debts in Sri Lanka and/or that he borrowed money from any individuals, loan sharks or other debtors. As a result, the Tribunal does not accept that the applicant was unable to repay the debts, and/or that any individuals, loan sharks or other debtors would seek to harm him now or in the reasonably foreseeable future.
Cumulative consideration
Having considered the evidence as a whole, the Tribunal does not accept that there is a real chance of serious harm to the applicant in Sri Lanka on the basis of his actual or imputed political opinion and/or any debts he owed or owes, now or in the reasonably foreseeable future.
Considering the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution because of his actual or imputed political opinion and/or any debts he owed or owes, as required for the purposes of the definition of a ‘refugee’ contained in s 5H(1) of the Act.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal has found that the applicant does not face a real chance of harm on the basis of his actual or imputed political opinion and/or any debts he owed or owes, now or in the reasonably foreseeable future. It is noted that in MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) (SZQRB), the Full 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 relation to the ‘refugee’ criterion (SZQRB per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342]). Accordingly, for the same reasons, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Sri Lanka, there is a real risk he will suffer significant harm on these bases.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of 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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Siran Nyabally
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 3679

1 August 2024

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Immigration

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Statutory Interpretation

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