2010015 (Refugee)

2010015 (Refugee) [2024] AATA 1315 (23 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Edith Kafoou Tapueluelu (MARN: 1173837)
CASE NUMBER:  2010015
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Rosa Gagliardi
DATE:23 January 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 23 January 2024 at 11:40am
CATCHWORDS
REFUGEE – protection visa – Tonga – government has no control of the country – lack of transparency about where money for financial support goes – cannot speak your mind in Tonga – intervening in a petition against the government – subject to verbal abuse – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 438, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 June 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 Tonga (a matter the Tribunal accepts) applied for the visas on 25 November 2018.
The delegate refused to grant the visas on the basis that the decision-maker in the first instance was not satisfied that the applicants are refugees as defined by s.5H of the Act and was therefore not satisfied that the applicants are persons in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Tonga there is a real risk they will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicants appeared before the Tribunal on 9 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade 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 applicants have a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicants were returned to Tonga now or in the reasonably foreseeable future, they would be persecuted for one of those reasons and/or whether they would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Tonga, there is a real risk that the applicants will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims at the time of application
In their written application, the applicants were asked to provide the reasons why the applicants left their country, Tonga. The first-named visa applicant responded:
The government is absolutely taking control of our little country and it’s now a place my husband and I do not want to live in a country I loved and adored.

There are so many questions in the air about the money that gets sent to Tonga for Financial Support where is it?
You cannot speak your mind in Tonga. Myself and my partner were intervening in a petition against this government and unfortunately being in that group, we have been verbally abused.
The applicants were asked whether the had experienced harm in their home country and to set out the type of harm experienced, the persons responsible for such harm, and why they were harmed. The first-named visa applicant responded, “Yes”, they had been harmed. It involved:
Mostly Verbal Threats that myself and my partner experienced. The person in charge of all this is the government and being so powerful every other government sector only need to be told once.
They would harm anyone willing to try and convince the board that Akilisi the “Government” is a fraud so many can vouch for that.
Asked if the first-named visa applicant and her partner had sought help within Tonga after the harm, she wrote “No” and that they could not seek help because the government authorities are the ones that work for the government and “You can never turn to any government agency for help because they are working for the Tonga Government”.
The applicants were also asked to set out whether they had or tried to move to another part of the country to seek safety. The first-named visa applicant responded “No”. Asked to explain why she wrote:
It is such a small country everybody and anybody knows each other. Tonga being such a poor country when prizes to find people or for information about people that the government authorities are looking for come around everybody will take that advantage to get the prize as such it is always money as the prize. They will take advantage to get that money as it would be very needed for families. So there is no point in trying to move to another part of Tonga because you will be found one way or the other.
The applicants were also queried about what they thought would happen to them if they returned to Tonga. The applicants answered, “Most definitely be hurt. In some cases people have gone missing, people are hospitalised even jailed”.
The applicants state that they will be harmed or mistreated if they return to their home country. Asked to provide details they wrote:
Mostly definitely be hurt. In some cases people have gone missing, people are hospitalized even jailed.
All Government Agencies obviously have to abide with Government so what ever the government says would need to be done. They would mistreat us in a way so we don’t get together and start a petition, raise awareness in how us as a community are being bullied into what the government intends to do with our country. We are in a little country that voicing our opinions will get us in trouble. It isn’t like Australia or any other country where us as a community voices matter.
The applicants responded that they did not think the authorities of Tonga can or will protect them because, “You can never turn to any government agency for help because they are working for the Tonga Government. They are paid hush money obviously they will do what it means to make ends meet in Tonga”.
Asked if the applicants could relocate within their country to an area where they would not be harmed, the applicants responded “No”.
It is such a small country everybody and anybody knows each other. Tonga being such a poor country when prizes to find people or for information about people that the government authorities are looking for come around everybody will take that advantage to get that prize as such it is always money as the prize. They will take that advantage to get that money as it would be very much needed for families. So there is no point in trying to move to another part of Tonga because you will be found one way or the other.
On 19 December 2023 the applicants’ migration agent wrote to the Tribunal stating (i) the applicants consented to the Tribunal making a decision on the papers without taking further steps to allow them to appear and (ii) requesting the Tribunal refer the case to the Minister for Ministerial Intervention due to compassionate circumstances.
The Tribunal examined the information submitted in support of a referral for Ministerial Intervention but considered that the Tribunal needed to have further information about the claimed exceptional and compassionate circumstances forming the basis of a Ministerial Intervention. The Tribunal therefore encouraged the applicants to attend a hearing to put forward their case in more detail.
The Tribunal hearing
The Tribunal asked whether the applicants were resiling from their claims in their applications. The first-named visa applicant confirmed that was the case.
Nonetheless, the Tribunal considered it important that the applicants be aware that their files contained a Notification regarding the disclosure of certain information under section 438 of the Migration Act. The Tribunal explained that the Department of Immigration and Border Protection had determined that matters contained in a certain document should not be disclosed to the applicants or their representatives because it contains personal details that other applicants provided in connection with their own Protection visa applications. The Tribunal stated that even if the Tribunal were to assess the claims made at the time of application (from which the applicants were now walking away) the Tribunal would not be inclined to release such personal details to the applicants. The applicants were comfortable with this approach.
The applicants advised that they came to Australia in February 2018 on Visitor visas. Asked why they did not adhere to the conditions of those visas and return within the specified period, the first-named visa applicant stated that when they came to Australia they wanted to apply for a visa because they liked it here. Due to a lack of knowledge, however, it was a big struggle for her and her husband.
The Tribunal asked the first-named visa applicant whether someone had suggested to them to put up false claims to the Department and she replied that they were not able to get any advice about extending their visa until they had overstayed – a matter they regretted. In attempting to find a legal pathway they came across a relative of her husband who advised she could help them. They were so excited because it would remove them from the situation they were in (unlawfulness). They did not know what the visa was about and why they were applying. They were just so happy to have been granted a Bridging visa in the interim.
The first-named visa applicant stated that they tried to get work rights and asked this woman to assist them, but the work rights never came through and then they never heard from her again. Financially they had been reliant on family members. As a family member they just trusted this woman to do the right thing by them. Currently, however, she and her husband did have work rights.
The first-named visa applicant stated that she had many family members in Australia unlike her husband. Her husband had an uncle, however, who needed care due to his complex illnesses. The current medical information indicates that the second-named visa applicant’s uncle due to renal damage, had had a kidney transplant and had suffered chronic glomerulonephritis, with previous biopsy and hyperfiltration causing proteinuria; deterioration following contrast. Other illnesses include ischaemic heart disease.
In the letter requesting the Tribunal advance the case for Ministerial Intervention, the migration agent argues that the second-named visa applicant’s father’s brother (uncle), a permanent resident of Australia, is suffering from severe kidney and heart disease and treatments have affected his eyes and he is awaiting eye surgery (medical evidence submitted). It is claimed that the second-named visa applicant’s ongoing presence in Australia is vital in caring for his paternal uncle, and that were the second-named visa applicant not to remain in Australia, his Australian citizen uncle would suffer “serious, ongoing, irreversible harm and continued hardship”. Reference is made to medical information indicating that if the trend to reduced renal function persists, he will need a transplant biopsy in the new year and that his condition is complicated by ischaemic heart disease. The migration agent also argues that the second-named visa applicant’s uncle’s eye complications means that he needs a carer’s assistance and that the second-named visa applicant is instrumental in helping care for his uncle and can provide the assistance he needs.
The second-named visa applicant advised that his uncle had been ill for some six years now. The Tribunal asked the second-name visa applicant whether he had been looking after his uncle and he replied that he had. Asked whether his uncle lived with him, the second-named visa applicant stated “no”. Asked how far away his uncle lived, the second-named visa applicant stated that his uncle was living in Sydney. The Tribunal queried how, given the second-named visa applicant lived in Canberra, he was able to care for his uncle. He stated he always took him to his appointments. The second-named visa applicant confirmed that he drove to Sydney to take his uncle to medical appointments. The Tribunal asked whether his uncle was married, and the second-named visa applicant responded that he was. The Tribunal asked whether his uncle’s wife assisted in the care of her husband, and the second-named visa applicant stated that his uncle’s wife was also unwell with cancer and had just completed chemotherapy. They would provide medical evidence to the Minister that this was the case. The Tribunal inquired about any children that his uncle might have, and it was disclosed that he had five children. The Tribunal queried why these children were not in a position to assist their father. The second-named visa applicant stated that one of the children had passed away. The other three had their own families and were living in different places. The youngest child was living with his parents but was working at a [workplace] from 9 to 6 pm.
The Tribunal again highlighted that the applicant’s uncle was living in Sydney and it would appear that his uncle’s children would have more access to their father than the second-named visa applicant. He responded that it was their hope that he and his wife could go and live with and look after their uncle.
The Tribunal asked the second-named visa applicant what his uncle’s prognosis was, and he responded that he had ongoing appointments for his conditions. The second-named visa applicant stated that they had not been given a timeline. The first-named visa applicant added that he was in a bad state as he had finished dialysis some three years ago, but he was at end stage. She stated that the reason they had not moved to Sydney was because she had now obtained employment in Canberra, but her husband drives to Sydney to take his uncle to appointments and to provide support. If the Minister intervened, then they would move to Sydney to care for her husband’s uncle but at this stage they were just waiting. They were not aware that her husband’s uncle was so sick until they visited him. They wanted to spend time with him. No one really knew what would happen in the future.
The first-named visa applicant stated that in Tonga she worked [in] a [workplace]. Here in Australia the first-named visa applicant was [an Occupation 1]. The second-named visa applicant was also [an Occupation 1].
FINDINGS AND REASONS
The applicants have now disavowed their previous claims about fearing harm in Tonga and were transparent that through the protection visa application they were attempting to regularise their migration status. Unfortunately, the applicants asked someone they thought they could trust to assist them but were misled into applying for the protection visa. The delegate noted in its decision, furthermore, that the applicants’ claims were largely similar to those presented by a number of other applications for a Protection visa. The similar claimants also provided identical documents in support of their claims. The delegate further wrote in the decision which has been made available to the Tribunal for the purposes of the review:
Features of these documents have been sourced at the same time and then included in various applications. These documents are general articles about Tongan politics and examine various concerns of government mismanagement and corruption. Some articles are undated while others are dated 2017 and 2018. The documents do not appear to have any personal connection to the applicant in this case.
In addition, the second-named visa applicant’s movement records demonstrate that he specifically, had been able to leave and return to Tonga freely on one occasion.
First-named visa applicant
-Was granted a Tourist visa on 22 March 2017
-The applicant arrived in Australia [in] February 2018
-Her Tourist visa ceased on 20 March 2018
-A Bridging visa (WC-030) was granted to her on 7 December 2018
The second-named visa applicant
-Was granted Tourist visa on 22 March 2017
-The applicant arrived in Australia [in] June 2017
-He departed Australia [in] July 2017
-Arrived in Australia [in] February 2018
-The applicant’s Tourist visa ceased on 20 March 2018
-Applied for a Bridging visa (WC-030) which was granted to him on 7 December 2018

The Tribunal notes that the first-named visa applicant did not avail herself of the opportunity to depart Tonga as soon as a Tourist visa to Australia was granted, and the second-named visa applicant departed Australia to return to his home country after first arriving here. The applicants’ movement records support the Tribunal’s findings that the applicants do not have a well-founded fear of persecution were they to return to Tonga now or in the reasonably foreseeable future for any reason under s.51J(1)(a), and not for reasons of their political or imputed political opinion.
The Tribunal also has no reason to find that the applicants will not be able to find work to sustain themselves in Tonga given the skills they have acquired in Australia and given that the first-named visa applicant at least was working in a [workplace] in Tonga previously.
The Tribunal has had regard to the articles submitted at the time of application referring to the general situation in Tonga discussing, among other things, political reforms experiencing a set back and the Pohiva government being dismissed by the King. One of the articles states, “Tonga remains a fledgling democracy, and the dissolution of the country’s parliament by the King can be seen as (a) hiccup along the path towards greater democratic consolidation”. Another article refers to a petition to sue former PMs involved in Tongasat payment. It is claimed that two former Prime Ministers were responsible for the government when nearly US$50 million of grant money from China paid to Tonga government was transferred to Princess Pilolevu Tuita and Tongasat. The Kele’a newspaper said a group was being tasked with organising the petition, but it did not identify the group or people behind it. While some of these events such as the dismissal of the Pohiva government and the signing of petitions actually occurred, the applicants have supplied no evidence that would tie them to such events or that they had any political or other profile in Tonga in signing petitions or speaking out against any political party, government, or action on the part of the King.
The applicants’ initial claims were also likely to fail as they were very general and did not provide significant details such as dates and times they participated in certain events.
In any event the applicants are no longer relying on the claims they made at time of application which they claim they entrusted a relative to put forward, even though the applicants were unaware of the detail of the claims. Accordingly, the Tribunal does not accept that the applicants will face persecution or serious harm on return to Tonga because:
·The government has no control of the country.
·There is a lack of transparency about where money for financial support goes.
·You cannot speak your mind in Tonga.
·The applicants were intervening in a petition against the government.
·They have been verbally abused.
·They would be harmed if they returned.
·People are incentivised by money in Tonga and would report the applicants’ whereabouts to the government wherever they went.
·Voicing your opinion will lead to trouble with government agencies.
For the reasons given above the Tribunal is not satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a).
Complementary protection
Having concluded that the applicants do 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 considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Tonga, there is a real risk that they will suffer significant harm. In MIAC v SZQRB [2013] FCAFC 33, 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 the definition.
Having found that the Tribunal is not satisfied that the applicants have any political profile in Tonga or that they have ever been involved in the signing of petitions or attracted any adverse interest from any political party or figure, including the King, and that there is no real chance that the applicants will face persecution for any reason, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Tonga, there is a real risk that the applicants will suffer significant harm. Based on the evidence, the Tribunal does not accept that the applicants will be arbitrarily deprived of their life; or the death penalty will be carried out on them, or that they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or that they will be subjected to degrading treatment or punishment.
The Tribunal is not satisfied that each of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visas.
Ministerial intervention
The applicants have been very open in stating that they would like to remain in Australia and that their main purpose in having the decision of the Department reviewed is that they wish the Minister to intervene in their case because new circumstances have arisen where the second-named visa applicant’s uncle is very unwell, and they wish to stay to care for him.
The Tribunal understands that the applicants through their migration agent will approach the Minister directly with further evidence to support their case that their circumstances are unique and compelling.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Rosa Gagliardi
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 1315

23 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction