2007869 (Refugee)

2007869 (Refugee) [2023] AATA 4383 (6 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Jessie Zhouand (MARN: 2318084)
CASE NUMBER:  2007869
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Nora Lamont
DATE:6 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii)that the other applicants [the second named applicant] and [the third named applicant] satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 06 October 2023 at 11:33am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – decision on the papers – religion – daughter’s conversion to Christianity – son’s atheist views – political opinion – imputed western political opinion – mental health – delay in leaving the country – delay in apply for protection – country information – state protection – internal relocation – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 9 April 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Bangladesh, applied for the visas on 16 September 2016.
The applicants were represented in relation to the review.
The Tribunal scheduled five separate hearings for the applicant’s, four of which the primary applicant asked for postponements due to work and the fifth time he asked for the Tribunal to make a decision on the papers. The Tribunal received a submission from the applicant’s representative stating the applicant had extreme, severe and overwhelming traumatic stress and anxiety as a result of the ongoing migration matter and he did not want to attend the hearing. The Tribunal agreed to make the decision on the papers without a hearing per the applicant’s request. [1]
[1] AAT Folio
The applicant’s arrived in Australia in 2008 and travelled on valid Bangladeshi passports. The delegate sighted these passports and had no concerns with their nationality. Based on their written evidence and in the absence of any evidence to the contrary, the Tribunal accepts that the applicants are nationals of Bangladesh and assessed their claims accordingly.
There is no evidence before the Tribunal to suggest that the applicants have the right to enter and reside in any safe third country for the purposes of s36(3) of the Act.
There are no non-disclosure certificates on the applicant’s file.
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 applicants claims as written in their protection visa application are summarised as follows:
- The applicant published articles questioning the government in high profile magazines and newspapers.
- The applicant was attacked outside the [Country 1] Embassy where he was working and beaten. He reported it to the police, but nothing was done about it.
- He was receiving warnings about his association with foreigners and his open-minded thoughts.
- He fled when he could some 2-3 years after the attack and arrived in Australia.
- He cannot return to Bangladesh as his son has mental illness and his daughter married a Baptist.
The applicant’s first arrived in 2008. The primary applicant was born on [date] and identifies as a Sunni Muslim. His son [the second named applicant] was born [date] and identifies as an atheist. [The second named applicant] suffers from severe mental illness and is wholly dependent on his father. Applicant three [the third named applicant] has married an Australian citizen and is in the process of obtaining and onshore partner visa.
The applicants were not represented when they put in their application for protection, nor were they represented when they were interviewed by the Department.
The Tribunal received the following documents in relation to the applicants:[2]
[2] AAT Folio
·Letter from [the second named applicant]’s consulting psychiatrist.
·Marriage certificate for [the third named applicant].
·Marriage photographs of [the third named applicant].
·Marriage certificate of [the first named applicant] and [Ms A].
·Australian citizenship certificate of [Ms A].
·Australian passport of [the first named applicant] amd [Ms A]’s shared biological daughter [Child B].
·Photographs of [the first named applicant] and daughter [Child B].
·Copy of [the first named applicant]’s degrees
·[The first named applicant]’s CV.
·Excerpt of [the first named applicant]’s former CV listing writing and publications.
·Copy of [the first named applicant]’s pay slip.
·Representatives’ submission.
·Statutory Declaration [Ms A].
·Statutory Declaration [the first named applicant].
·Statutory Declaration [the third named applicant]
Background
The representative submitted that the primary applicant’s cultural background hindered him from completely expressing himself and being able to provide evidence before the Department at the interview. Further, the attack outside the [Country 1 Embassy] in which the applicant was harmed happened some fifteen years prior to the interview and he had trouble accurately describing it.
The applicant was employed by the [Country 1 Embassy] from [year] to [year]. There were concerns around locals being harmed for working for westerners in a conservative country and the [embassy] provided the applicant with a driver and a car. The applicant states he was often approached with bribes during his work at the [embassy], although he always refused.
In addition, the applicant was a contributing editor for [a] magazine [Magazine 1] and published a front-page article titled [Title 1] The applicant also wrote articles and was published in [Newspaper 1] a Bangladeshi national daily newspaper.
The applicant also started his own magazine called ‘[Magazine 2]’ which focused on progressive technology and the positive side of globalisation throughout the internet. These topics were considered western, and he would often receive threatening phone calls warning him to stop and in 2005 he closed it out of fear.
In 2005 the applicant was leaving the [Country 1 Embassy] late at night and a driver was not available. Upon leaving he noticed a tuk tuk outside and the driver agreed to take him. The driver of the Tuk Tuk took him to a secluded location claiming he had a flat tyre. There were three other men there. The applicant was attacked, and they rubbed lubricant in his eyes so he could not see. He states they called him by his first and last name. Some people passing by assisted him and took him to the hospital where he was treated.
The applicant did report this attack to the police, but they did nothing about it. He believes that he was attacked for his extensive work with westerners and for his [magazine] articles and work. It was after this attack that the applicant decided he needed to leave Bangladesh.
The applicant has a son with a severe mental illness and his son also identifies as an atheist. The applicant is under extreme pressure caring for his son fulltime and by providing the sole financial support in the family unit. As the applicant’s son has severe mental illness and is an atheist the applicant fears harm based on religion and the applicant’s son would not be able to get adequate care in Bangladesh for his schizophrenia. The social stigma would mean his son would suffer at the hands of society who often call people with mental illness witches or sorcerer’s.
The applicant also fears harm based on his daughter’s religious choice to become a Christian and marry a Baptist. She has converted to Christianity and whilst she may never return to Bangladesh her father and brother could suffer based on her apostasy should people in the community find out.
DFAT reports the following in relation to the applicant’s claims that he will be harmed due to his daughter’s conversion to Christianity and his son’s atheist views. [3]
[3] DFAT Country Information Report Bangladesh (30 November 2022).
Religion
3.33 According to the 2021 US Department of State International Religious Freedom Report on Bangladesh, 89 per cent of the population is Sunni Muslim and 10 per cent is Hindu. The remaining population is mostly Christian or Buddhist. Religious minorities are found throughout the country but especially in the Chittagong Hill Tracts among Indigenous People.
3.34 The ruling Awami League promotes religious pluralism and tolerance. The Constitution affirms Islam as the state religion but provides for religious equality and freedom. In practice, these laws are subject to constitutional provisions about public order and morality.
3.35 Family law (concerning marriage, divorce, inheritance and adoption) contains specific provisions for Muslims, Hindus and Christians, but the same secular courts hear cases for all religious communities. There is a separate civil family law for mixed faith families or adherents of faiths other than Islam, Hinduism or Christianity.
3.36 There are no laws prohibiting religious conversion, but the practice is nonetheless risky because families and communities might violently object. The US Department of State International Religious Freedom Report notes NGO claims that physical violence, harassment and social isolation are threats to Christians who have converted from Islam.
3.37 DFAT is aware of claims of rising influence of Islamist groups and moves by major political groups away from the country’s secularist constitution. These claims do not broadly reflect the reality on the ground; there has been no significant change since the last DFAT Country Information Report on Bangladesh. The Awami League is by far the most influential political movement in the country. There has been no major shift in its ideology or in the extent that that ideology is significant in the day-to-day lives of Bangladeshis and Bangladeshi politics. For further information see Political System, Political Opinion (Actual or imputed) and the relevant section about different religions below.
Blasphemy, defamation of religion and atheists
3.38 There is no specific blasphemy law in Bangladesh, but other laws are used to effectively prohibit blasphemy. The Penal Code include provisions that prohibit deliberate insults to religion and offences can attract fines or prison sentences of up to two years. The Information and Communication Technology Act and the Digital Security Act similarly have provisions that prohibit the use of online platforms to insult religion. Under those laws a ten-year prison sentence is possible.
3.39 Atheism is uncommon and unpopular. An atheist blogger, Avijit Roy, was killed in 2015 by members of the terrorist group Ansar al-Islam. His killers were sentenced to death in 2021 by an anti-terrorism tribunal. DFAT is not aware of more recent examples of harm coming to professed atheists.
3.40 According to New Humanist, the journal of the United Kingdom-based Rationalist Association, in 2017 after a 21-year-old blogger posted about dissatisfaction with Islam on Facebook, he received death threats, was expelled from his college, and evicted from his home and fled to India.
3.41 Religion, particularly Islam, is a central part of Bangladeshi culture and identity. Publicly professed atheism is very uncommon and could lead to violence, but DFAT is not aware of a pattern of incidents that can be analysed to assess risk. A publicly professed atheist would probably face social discrimination and violence, especially if they attempted to convince others to adopt their beliefs. Accusations of atheism can be used as a weapon to foment violence; acts of blasphemy are sometimes confected and then blamed on innocent parties (see prominent example with Hindus), which may lead to mob violence or lynching.
Christians
3.54 Christians are not always readily identifiable by cultural, language or facial traits, but some Indigenous People with distinct facial and cultural characteristics are Christian. Many Christians are descendants of 15th century converts who look like other Bangladeshis but have Portuguese surnames. See Indigenous People. According to the 2021 US Department of State Religious Freedom Report, Christians live in communities across the country, with relatively high concentrations in Barishal City, Gournadi in Barishal District, Baniarchar in Gopalganj District and Monipuripara and Christianpara in Dhaka, as well as the cities of Gazipur and Khulna.
3.55 Christians are able to access schools, hospitals and other services provided by their churches. Churches run extensive social welfare, health and education facilities, which are open to non-Christians and often serve the poor. This reputation for care can help reduce social isolation and discrimination against Christians. However, DFAT understands from sources that such organisations experienced financial trouble during the COVID-19 pandemic, and some have been less able to provide services as a result.
3.56 Discrimination against Christians does nonetheless occur occasionally, for example the denial of goods or services or accommodation. The experience of discrimination depends on individual circumstances. Many Christians live in communities together and experience less discrimination as a result. 3.57 Some people convert to Christianity, mostly lower caste Hindus and Indigenous People, who often convert as a group, for example as an entire family or village community. Some experience discrimination and violence following that conversion, and some do not. According to sources, converts do not generally experience discrimination from families and communities – this can be in part due to the fact that conversion often takes place at the community or family level. The potential for family or community discrimination and violence cannot be ruled out; but it would depend on the individual family or community circumstances. Some sources told DFAT that baptisms sometimes occur in secret to avoid attracting attention and potential discrimination or violence, demonstrating that risk of violence and discrimination can attach to at least some conversions.
3.58 A potential for violence from anti-Christian Islamist groups exists. The state sometimes provides armed security at churches, especially around sensitive dates like Easter and Christmas. Sources told DFAT that they generally feel safe at church. According to the 2020 US Department of State International Religious Freedom Report, Christian families living in the Rohingya camps were attacked in January 2020. The reason is not clear, but the victims claimed that it was anti-Christian violence. Isolated incidents of death threats and murders have also been reported. As with Buddhists, because many Christians are Indigenous, violence may in fact be related to land disputes or race discrimination, rather than religious belief. DFAT is aware of one incident in July 2021, reported by PIME Asia News (a Catholic news website), in which Buddhists attacked Christian converts to try to get them to return to Buddhism.
3.59 Sources told DFAT that, while Christians mostly worship freely, many keep a low profile to avoid violence. For example, after Friday prayers at local mosques, some Christians try to conduct their church services quietly to avoid attracting attention.
3.60 DFAT assesses that Christians face a moderate risk of societal violence in the form of localised incidents and the possibility of mob violence. Like other minorities, Christians face a risk of sporadic attacks. The risk is higher for Muslims who convert to Christianity (or any other religion) in the context of a lone conversion without the support of their community or family, but the risk would then depend on individual circumstances. See also Indigenous People for Christians that live in Indigenous areas.
In relation to the applicant’s assertion that he would be a political target of the government given the articles he wrote DFAT states the following:[4]
[4] DFAT Country Information Report Bangladesh (30 November 2022).
POLITICAL OPINION (ACTUAL OR IMPUTED)
3.65 Bangladesh politics have long been dominated by the Awami League (AL) and the Bangladeshi Nationalist Party (BNP). The AL has traditionally been broadly secular, liberal, rural-based and in favour of relations with India. The BNP has traditionally been broadly more accommodating of political Islam, conservative, broadly against relations with India and urban-based.
3.66 The relationship between the two parties is characterised by longstanding enmity. The rivalry is also deeply personal at the highest levels: the AL’s leader and Prime Minister, Sheikh Hasina, is the daughter of the ‘Father of the Nation’ Sheikh Mujibur Rahman. The BNP’s leader, Khaleda Zia, is the widow of the party’s founder, former General and President Ziaur Rahman. Sheikh Mujibur Rahman and Ziaur Rahman were both assassinated in office, and their respective parties view them as martyrs.
3.67 Bangladeshi politics is heavily based on patronage; for most Bangladeshis, patronage of political figures is far more important than ideology. Loyalty, especially to Prime Minister Hasina and other key figures, is very important. In-country sources told DFAT that personal loyalties to local politicians or other influential people is critical; it can mean the difference between accessing basic goods and services (for example related to land, social welfare, jobs) or not accessing them.
3.68 DFAT is not aware of evidence of forced recruitment to political parties and considers it unlikely to occur. Parties hold membership drives each year and can get voluntary members through these. DFAT understands that the BNP is not currently holding membership drives but that forced recruitment to the BNP is also unlikely. According to a 2018 survey by the Asia Foundation, around four-fifths of Bangladeshis have limited interest in politics, and even those who have such an interest are not necessarily members of any party.
3.69 The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI) (see following sections). According to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations. Human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.
3.70 social media is monitored in Bangladesh and the government has been proactive in shutting down mobile data networks to prevent the forwarding of WhatsApp messages or viewing online content that has the potential to spark communal violence. It is not possible to predict accurately the kinds of social media or users who would attract such attention. Sources told DFAT that certain topics on social media are more likely than others to attract government attention. These include mention of corruption among senior people, mention of the family of senior figures or their personal lives (especially the ‘Father of the Nation’, Sheikh Mujibur), military affairs, and perhaps LGBTI issues or comments against Islam. The government does not have the capacity, nor perhaps the interest, to monitor all social media posts. The risk of a post being noticed and given adverse attention is greater for higher-profile people or where the post goes ‘viral’ and attracts a lot of attention, whether positive or negative. DFAT is not aware of a set formula or clear set of circumstances that would cause this to occur.
Mental health
2.20 Mental health facilities are inadequate to meet demand. Funding is low and there are few mental health workers. A Bangladeshi Government national survey on Mental Health was conducted in 2019. It found that about 17 per cent of survey respondents had a mental health disorder, with depression and anxiety most common. The vast majority of those respondents were not receiving treatment for their illness. More recent studies found that the prevalence of mental health disorders increased during the COVID-19 pandemic.
2.21 According to a study published in the BJPsych International journal in August 2021, there are only 260 psychiatrists in Bangladesh. The same study found that basic psychiatric medications are generally unavailable. Sources told DFAT that there is a lack of dedicated mental health facilities. There are telephone helplines and private counselling available, but counselling services are cost-prohibitive to most people.
2.22 Sources told DFAT that ‘stress and depression’ are seen as a ‘rich person’s problem’, and that the few services that are available are mostly targeted to these issues, where doctors have identified a market. Other mental health conditions, such as psychotic illnesses, are harder to treat in practice and there are fewer facilities and professionals available.
2.23 There is a strong stigma associated with mental health disorders in Bangladesh that can lead to ostracism from families and communities. Stigma can be characterised by disdain or aversion of people with mental illness, or a sense of disgrace felt by the patient. Sources told DFAT that some people consider the mentally unwell as ‘mad’ or ‘cursed’.
2.24 DFAT is aware of some reports of ‘shackling’, chaining up, locking or hiding away family members because of the shame caused by their mental illness, but is not aware of the prevalence of such practices.

The Tribunal has comprehensively looked at all the evidence provided. Despite the delay in leaving Bangladesh and the delay in applying for a protection visa the Tribunal has considered that the subjective fear that the applicant has for his future is made clear on the available country information. The Tribunal considers that the violence and harm the applicant would face upon return to Bangladesh does constitute serious harm. The Tribunal therefore considers, based on the evidence before it, that the applicant has a real chance of serious harm arising from his imputed western political opinion.
The Tribunal finds that the applicant has a real chance of serious harm on return to Bangladesh for his imputed political opinion. The Tribunal finds he has a well-founded fear of persecution for this reason.
The Tribunal has considered whether the applicant could avail himself of state protection. Given that the police would not help the applicant when he was attacked and given that the police have a reputation for corruption and violence, the Tribunal considers that the applicant would not be afforded state protection: [5]
Police
5.1 Bangladesh Police is the country’s primary law enforcement agency. There are several branches of the police such as the Metropolitan Police, Railway Police, Highway Police, Industrial Police, River Police, Tourist Police and others. These all fall within the same structure of the Bangladesh Police and the distinction is unlikely to be important in a day-to-day sense for most Bangladeshis.
5.2 Professionalism varies across the police service. Senior officers are relatively well trained and well paid. Those in lower ranks by contrast are poorly paid, poorly trained and poorly equipped. Low incomes encourage corruption and solicitation of bribes is common. Rules designed to ensure accountability and probity (for example, limits on police arrest or ability to hold suspects, see also Arbitrary arrest and detention and criminal procedure and enforced or involuntary disappearances) are not always adhered to.
5.3 Bribes are sometimes paid to influence outcomes of investigations, or to cause an investigation to occur, or not to occur. Allegedly, demands for bribes, or the threat or act of violence, may also be used to apply political pressure, according to sources. Political patronage may also affect outcomes of police complaints; for example, a complaint is more likely to be investigated if an influential person intervenes on behalf of the complainant.
5.4 Police systems are highly bureaucratic, and this can lead to slow or ineffective responses to crime. DFAT understands that the national system of policing can be effective, for example in finding suspects in different parts of the country, but that this is not always the case for the reasons mentioned above. Whether or not a person who flees to another part of the country would be found by police depends on the nature of the crime and how motivated the police were to find them and could be affected by corruption and levels of professionalism.
5.5 Most people do not trust the police, given their reputation for corruption and violence. Some religious minorities, for example, have benefited from police presence, but most people that DFAT spoke to had a negative view of police. GAN Integrity, a United States consultancy, notes ‘Businesses ranked the Bangladeshi police as one of the least reliable in the world and noted business costs due to crime and violence.’ DFAT assesses that most Bangladeshis, whether in business or not, would avoid contact with police for similar reasons.
[5] DFAT Country Information Report Bangladesh (30 November 2022).
The Tribunal has considered whether the applicant could relocate to an area outside his home area to avoid the fear he feels in his home area. Whilst Article 36 of the Constitution allows for Bangladeshis to move freely within their own country the applicant has a political profile, is now coming back from a western country with a son with schizophrenia and as an atheist would put the family at risk throughout Bangladesh. Further, the applicant has published articles which are pro-western and his work with foreign entities has branded him as political and western. Therefore, there is nowhere the applicant, and his family can move to avoid the harm they fear. [6]
[6] DFAT Country Information Report Bangladesh (30 November 2022).
For the reasons given above the Tribunal is satisfied that the primary applicant is a person to whom Australia has a protection obligation. Therefore, the applicant satisfies the criterion set out on s36(2)(a). The other applicants satisfy the criterion as members of the same family unit as the primary applicant.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the other applicants [the second named applicant] and [the third named applicant] satisfy 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Nora Lamont
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4383

6 October 2023

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