2008134 (Refugee)

2008134 (Refugee) [2024] AATA 3665 (6 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2008134

COUNTRY OF REFERENCE: Russian Federation
MEMBER:Mara Moustafine
DATE:6 August 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 August 2024 at 11:35am
CATCHWORDS
REFUGEE – protection visa – Russia – particular social group – women – family violence – physical assault – fear of killing – employment – residence registration – internal passport expired – Russian Federation citizenship – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant is [an age] year old citizen of the Russian Federation. She last arrived in Australia [in] December 2010 as the holder of a [Student] visa granted on 28 September 2010 and valid until 13 February 2012. She applied for a Protection visa on 23 May 2016.
On 4 May 2020, a delegate of the Minister for Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
According to her Protection visa application form, the applicant was born in [specified year] in Ussuriisk, Primorsky region, of the former USSR. She lived in Artem, Primorsky region ([between specified years]), Oktyabrsky ([between specified years]), Artem ([between specified years]) and Vladivostok (2001-2010), when she came to Australia. The applicant identified her ethnicity as Russian Korean, her religion as Orthodox and her profession as [an occupation 1]. She speaks, reads and writes in Russian. The applicant married in [year] and divorced in 2000. Her daughter, born in [year], biological mother and stepparents are living in the Russian Federation. She indicated that she was in regular contact with her daughter. The applicant completed a course in [Subject 1] at the [named] University in Vladivostok in [year] and worked as an [occupation 1] in various companies in Vladivostok between 2001 and 2010. She travelled for work to [specified countries] in 2005 and 2006, as well as to [Country 1] between 2007 and 2010. In December 2010 she left Russia legally on her own passport.
In summary, the applicant’s protection claims, as set out in her application form and handwritten statement, were as follows:
a.She left Russia because she wanted to get away from harm from her ex-husband, who always controlled her life and that of her daughter. He continued to harass her when she and her daughter came to study in Australia until her daughter returned to Russia, while the applicant stayed here.
b.If she returns to Russia she will be a woman at risk as her ex-husband will take revenge on her. In the past she endured emotional, physical and psychological abuse from him. She experienced serious harm in Russia and came to Australia as a student to avoid further harm.
c.She could not seek help or relocate in Russia as her ex-husband was powerful as a member of the KGB and could locate and harm her anywhere in Russia. The authorities in Russia will not protect her because there is no protection for women in her situation.
d.Relocation is not possible as she has no money, no assets, no job in Russia and no male figure to support her.
With her application, the applicant submitted a copy of the biodata pages of her Russian Federation passport.
According to documents on the Department file, including an email dated 29 March 2020, the applicant submitted additional claims for protection, including that her husband had told her that she would ‘disappear’ if she approached her daughter in Russia. She also claimed that her internal passport had expired, her adoptive mother had disinherited her from her share of the family property and she would be unable to obtain employment in Russia without residence registration.
Relevant documents submitted by the applicant to the Department on 1 November 2019 included an undated statement, partially in English and Russian, in which she stated that she had renewed her Russian Federation passport and noted that, during the process of confirmation of her Russian citizenship it emerged that her internal Russian passport had expired when she turned 45 years old, so she should confirm her Russian citizenship and later renew her internal Russian passport; documents relating to the confirmation of her citizenship, including a letter dated [in] 2019 from the Ministry of Internal Affairs of the Russian Federation addressed to the Russian Consulate General in [City 1] confirming the applicant’s citizenship of the Russian Federation; the biodata page of her new Russian Federation passport showing validity from [2019] to [October] 2024; documents relating to her medical condition; various family photographs, including one identifying her daughter, ex-husband and his ‘second wife’; the applicant’s curriculum vitae; a statement requesting a bridging visa and the right to work while her application was considered, setting out details of her family background; documents relating to her daughter’s living arrangements in 2007 and her academic statements; a July 2012 country report on Russia by EUDO Citizenship Observatory.
The interview
The applicant attended a Protection visa interview with the Department on 31 March 2020. The Tribunal has listened to a recording of the interview.
The delegate’s decision
The delegate refused to grant the applicant a Protection visa as she was not satisfied that she was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion. The delegate noted that the applicant did not apply for protection visa for almost 6 years after her arrival in Australia. In light of this and the passage of more than twenty years since the applicant divorced her ex-husband, who had now remarried, the delegate did not accept that her ex-husband would have any interest in pursuing or harming her if she returned to Russia and saw their daughter, who was now an adult; nor that he would otherwise seek to cause the applicant any harm. In the absence of evidence to the contrary, the delegate did not accept that the applicant’s ex-husband was previously a member of the KGB with connections across Russia.
Further, the delegate did not accept that the applicant would be unable, or denied by the authorities, to renew her internal passport upon return to Russia, or to obtain residence registration with the Federal Migration Service to access social services such as health care or to obtain employment if she provided the required documentation. Nor did she accept that the applicant would be unable to obtain residence registration because she would not inherit a property from her parents or because her internal passport had expired.
The review application
On 11 May 2020, the applicant applied to the Tribunal for a review of the Department’s decision, a copy of which she provided for the purpose of the review, together with a copy of the biodata pages of her current Russian Federation passport issued by the Russian Consulate in [City 1] [in] 2019 valid for five years.
On 27 July 2024, ahead of her hearing the applicant submitted a statement in which she stated:
a.About her internal passport: she had informer the Immigration Department that it had expired and she was not able to renew it at the Russian consulate in [City 1] because, according to Russian Federation law, internal passports which were valid until the age of 45 years could only be renewed inside the country and she had turned 45. For a few years after her marriage in [year] when she moved to live with her husband she did not have residency registration, therefore no evidence that she resided in Russia on 6 February 1992, the date of renewing USSR citizenship to Russian Federation citizenship.
b.Regarding the question what happened to her in Russia and what will happen if she goes to Russia: when her daughter completed her degree and went back to Russia, she could not go back with her as she ‘felt fear.’ When her ex-husband found out that she had taken their daughter to study in Australia after she turned eighteen without his permission, he told his daughter to return to Russia and warned the applicant not to approach her daughter when she returned to Russia or he would ‘liquidate’ her. She fears that if she returns to Russia, her ex-husband will resume the conflict with her about taking her daughter overseas, abuse and harm her. If she tries to take her daughter to live with her, he will persecute and liquidate her and people will not notice her disappearance as they know she stayed in Australia.
In her statement and covering email the applicant included information about Korean cultural attitudes to divorce and custody taken from reddit.com and referred to the alleged murder of one of her Korean friends in Russia by her jealous ex-husband, including the text (using google translate) of an article reporting the arrest of the perpetrator. The applicant also cited various sources regarding domestic violence in Russia and failed attempts to introduce domestic violence legislation. Supporting documents provided included various photographs of herself, her ex-husband and daughter and a conditional letter of offer into a [University 1] course.
The Hearing
The applicant appeared before the Tribunal on 2 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. The applicant presented a copy her current passport as identification.
At the start of the hearing the applicant confirmed that all evidence she had submitted to the Department and Tribunal was true and correct, noting the additional information recently submitted to the Tribunal.
The Tribunal discussed with the applicant the background to her claims and why she fears returning to Russia. Where relevant to her protection claims, the applicant’s evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Relevant Law
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.
Analysis, Findings and Reasons
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 the complementary protection criterion.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
As noted in the delegate’s decision, the Russian Federal Law on the Citizenship of the Russian Federation stipulates that ‘the documents to certify the citizenship of the Russian Federation shall be the Passport of the Russian Federation Citizen or another basic document indicating the person’s citizenship’[1].
[1] Russian Federal Law on the Citizenship of the Russian Federation (As Amended in 2017), Article 10.
On the basis of her Russian Federation passport submitted to the Tribunal, and, in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of the Russian Federation and considers Russia as the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria, respectively.
The applicant’s claims
Essentially the applicant claimed to fear harm in Russia as a woman at risk of domestic violence from her ex-husband because they disagreed about sharing their daughter. The applicant also claimed that she could not return to Russia because her internal passport had expired and she did not have residence registration.
The applicant told the Tribunal at the hearing that she came to Australia in December 2010 on a Student visa to study English. After she turned 18, her daughter also came to study English in Australia but returned to Russia after completing her course, while the applicant remained in [Australia] and has been working as [an occupation 2].
Fear of harm from her ex-husband and domestic violence in Russia
In discussion at the hearing as to whether she suffered serious harm in Russia, the applicant told the Tribunal that she had problems with her ex-husband and mother-in-law when she lived with them and was constantly fighting with him, including suffering physical harm. However, their physical fights ended after they divorced in 2000 and she went to live in Vladivostok, where the applicant worked as an [occupation 1] for various [businesses]. Her daughter lived with her there until she was [age] years old but then chose to live with her father in his home village. The applicant confirmed that her ex-husband has a new partner and she has had no contact with him since 2011, when he was angry about her taking her daughter to study in Australia without his knowledge. The applicant told the Tribunal that her daughter, who was now [age] years old, had completed her university degree in Russia, where she lives with her [specified relative]. She works and travels to South Korea, sometimes with her father and at other times alone. The applicant was now in contact with her daughter through WhatsApp, although their relationship had earlier been strained.
Asked why she feared harm if she returned to Russia now, the applicant claimed that, after he found out that she had brought her daughter to study in Australia without his permission in 2011, her ex-husband threatened to ‘liquidate’ her if she ever tried to approach her daughter in Russia. She said her ex-husband might not take this action himself but could organise that it be done through his powerful connections. She said that as she would definitely contact her daughter if she returned to Russia, this would result in trouble from her ex-husband, against which there would be no protection for her from family or the authorities.
The Tribunal queried why the applicant was so important to her ex-husband that he would go to such lengths as to ‘liquidate’ her after so many years, especially as their daughter was now [an age] year old independent woman who, by her own evidence travelled and lived in Korea on her own. The applicant responded that she was not at all important to her ex-husband who always regarded her simply as ‘property.’ She referred to Korean cultural attitudes towards divorce, gave the example of the murder of her Korean friend in Russia by her jealous ex-husband; and the prevalence of domestic violence in Russia. As discussed with the applicant, the Tribunal finds these parallels purely speculative as there is no evidence as to why it is relevant to her particular circumstances. The Tribunal is not satisfied that, if she returns to Russia now or in the reasonably foreseeable future, there is a real chance or real risk that she would suffer serious or significant harm from her ex-husband, whom she divorced 24 years ago and has had no contact with for over a decade over a disagreement regarding their now adult daughter.
The Tribunal has had regard to the information the applicant provided regarding the prevalence of domestic violence in Russia and the absence of legislation to address it, as well as her evidence about the alleged murder of a Korean friend in Russia by a jealous ex-husband. However, as discussed with the applicant, the Tribunal is not satisfied that this relates to the particular circumstances of her case.
Inability to obtain employment in Russia without residence registration due to her expired internal passport
The applicant gave evidence to the Department that her internal Russian Federation passport had expired, her adoptive mother had disinherited her from her share of the family property and she would be unable to obtain employment in Russia without residence registration. In her submission to the Tribunal the applicant noted that she had been unable to renew her expired internal passport at the Russian Consulate in [City 1] and that she did not have residence registration in Russia on 6 February 1992, the date Russian residents with USSR citizenship were granted Russian Federation citizenship. However, the applicant did not raise any of these issues as reasons why she feared returning to Russia at any stage during her Tribunal hearing. Asked several times if there were any other reasons she feared return apart from her problems with her ex-husband, the applicant said no, this was her only problem.

Based on information provided in her application form, at the time she arrived in Australia, the applicant held an internal (‘civilian’) Russian Federation passport issued in [2002]. According to country information, Russian citizens resident in Russia must renew internal passports at the age of 45 and these passports are not issued by Russian missions abroad, which only provide foreign travel passports.[2] The Tribunal accepts that as the applicant was living in Australia in [specified year] when she turned 45, her internal passport has expired and she has been unable to renew it at the Russian Consulate in [City 1] as this renewal can only take place inside the Russian Federation. Country information cited in the delegate’s decision record identified the documentation required for citizens to renew their internal passport as including a birth certificate, confirmation of military service, marital status and evidence of payment. The Tribunal considers that there will be no impediment to the applicant applying to renew her internal passport on return to Russia.
[2] Immigration and Refugee Board of Canada, ‘Russia: Requirements and procedures to obtain internal and foreign travel passports; whether biometric passports have been used; if so, information on the biometric passport, including stored biometric data and its appearance; requirements and procedures to obtain a biometric passport within Russia; whether it can be replaced and renewed from abroad, including requirements and procedures (2014-January 2016), 19 January 2016, RUS105381.E, available at:
At her hearing, the applicant provided a copy of her current Russian Federation passport. She had previously provided to the Department a copy of this passport, as well as her previous passport, now expired. In her Protection visa application form, the applicant also provided details of her internal Russian Federation passport issued [in] 2002. On this basis, the Tribunal finds that the applicant’s citizenship of the Russian Federation is not in question by the authorities of the Russian Federation, notwithstanding that she may not have had residence registration on 6 February 1992.
According to country information referenced in the delegate’s decision, Russian citizens are required to register their residence with the Federal Migration Service to access social services such as health care or to obtain employment and the documents required for registering a new residence include a copy of an internal passport, a residence registration application form stating the new address and the reason for changing residence, a letter of consent from the owner of the apartment accepting the registration at the address and a rental agreement. At the hearing, the applicant told the Tribunal that her last residence registration in Russia was at a rented property in Vladivostok, where she lived and worked between 2000 and 2010. She claimed that she was ‘automatically’ deregistered from that address when she left for Australia.
In view of the above, the Tribunal shares the delegate’s view that there is no impediment to the applicant applying to renew her internal passport on her return to Russia or obtaining residence registration at any address she chooses to stay, whether in Vladivostok, the Primorsky region or elsewhere in Russia. Nor is there any evidence before the Tribunal that ownership of property is a requirement to obtain residence registration. This is reinforced by the applicant’s own evidence that her last residence registration in Russia was at a rented property in Vladivostok.
As discussed with the applicant, the Tribunal has attained a high level of education and has experience of working and living independently in Vladivostok in the past. In light of this and the resilience she demonstrated in living and supporting herself in Australia over the past 14 years, the Tribunal does not accept that the applicant will be unable to find employment or support herself if she returns to Russia now or in the reasonably foreseeable future.
Four year delay in applying for protection
The Tribunal’s doubts about the genuineness of the applicant’s fear of harm in Russia are compounded by her delay in applying for a Protection visa while she remained unlawfully in Australia for 4 years after her Student visa expired. In discussion at the hearing, the applicant claimed variously that this was because she did not know what to do, was depressed and did not know about Protection visas, which she thought were only for people fleeing war like in Afghanistan, not for women at risk of domestic violence. As suggested to the applicant, the Tribunal finds this dubious, given that she knew her visa had expired and did not approach the Department to discuss her issues or regularise her migration status.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that the applicant will face serious or significant harm if she returns to Russia now or in the reasonably foreseeable future. The Tribunal is not satisfied that she will be abused, harmed, persecuted or ‘liquidated’ by her ex-husband or any of his associates because she took their daughter to Australia in 2011 without his permission or if she dares to approach their now adult daughter in Russia, as claimed.
On the evidence before it, the Tribunal is not satisfied that there is a real chance that if the applicant were to return to Russia, she would face harm for any of the reasons contemplated by s.5J(1)(a) of the Act or that the applicant has a well-founded fear of persecution.
For the same reasons, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Russia, there is a real risk that she will suffer significant harm.
CONCLUSIONS
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.
Mara Moustafine
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 3665

6 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction