2010781 (Refugee) - [2024] ARTA 565

2010781 (REFUGEE) [2024] ARTA 565 (20 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2010781
Tribunal:General Member C Wall
Date:20 November 2024

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.

Statement made on 20 November 2024 at 12:40pm
CATCHWORDS
REFUGEE – protection visa – Ukraine – ethnic Russian and former member of Communist Party – government’s anti-Russian activities and social discrimination and exclusion – age and multiple physical and mental health conditions – one adult child in home country, and other children settled in Australia – consistent and reliable claims and evidence – country information – Russian invasion, infrastructure destroyed and delivery of basic services unreliable – older people disproportionately killed or injured – ongoing and unpredictable circumstances – no evidence that government is targeting citizens of Russian ethnicity – refugee criteria not met – complementary protection – particular vulnerability and risk not the same as that faced by population generally – limited right to enter Russia temporarily – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4)(a), 36(2)(a), (aa), (2A), (2B)(c), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BBK15 v MIBP (2016) 241 FCR 150
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Ukraine, applied for the visa on 14 April 2016. The delegate refused to grant the visa on the basis that he was not owed protection by Australia.
The applicant appeared before the Tribunal on 14 November 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’s support person, [Mr A], was present throughout the hearing.
The applicant was represented in relation to the review and the representative attended the hearing.
BACKGROUND
The applicant is now [Age] years old. He was born in [Kazakhstan], which at that time was part of the USSR. He later lived in Ukraine and obtained Ukrainian citizenship when Ukraine gained independence in 1991.
He married in 1962 and had 3 children; [names and ages]. His wife died in Ukraine in 2014.
The applicant has travelled to Australia on multiple occasions since 1996 to visit his son [Mr B] and his family. His daughter [Ms C] moved to Australia in 2022. [Ms D] remains in Odessa.
The applicant worked in [work sector 1] in Ukraine and since his retirement he has received a government pension. He lived in his own home in [Town] which is approximately [Distance] km from Odessa. Over recent years he has experienced a number of health problems and his daughter [Ms C] cared for him in Ukraine prior to 2015.
The applicant last came to Australia [in] February 2015 and subsequently sought protection. He lives with his son [Mr B] and daughter-in-law and their [children] in Melbourne.
CLAIMS
In the visa application the applicant’s claims were (in summary):
He is ethnically Russian. He was formerly a ‘middle tier member of the Communist Party’.
Since the coup-d’état in 2014 the Ukrainian government has strengthened its ani-Russian activities, with Russian books and films banned and communists treated with suspicion. This is scary for people like him and he developed depression and anxiety. It is no longer safe for him to publicly celebrate the traditional Soviet Victory Day in Ukraine, Soviet-era monuments have been knocked down and Russian named public places renamed. He expects the situation for Russians in Ukraine to become worse.
The cost of living is very high for someone like him on a small pension.
The applicant was interviewed by the Department on 11 June 2020.
The applicant’s claims to the Tribunal are (in summary):
The applicant’s age, severe health conditions, lack of family support in Ukraine and the hostile conditions in Odessa, and in Ukraine broadly, collectively make him highly vulnerable and in need of protection.
The situation in Ukraine has become very dangerous since Russia invaded the country in February 2022. On 6 November 2024 Russian forces launched 63 drones and 2 guided air missiles targeting the Odessa region.
The applicant’s medical conditions have become increasingly complex, making the idea of independent living an impossibility for him. He has an uncontrolled arrhythmia, hypertension and advanced osteoarthritis. His mental health is fragile. He relies on daily assistance from his family for basic tasks such as cooking, cleaning and mobility.
His daughter [Ms D] is the only family member remaining in Ukraine and she is unable to care for him because of her own health problems and because she lives some distance from the applicant’s home. He has a stable family network in Australia which comprises his son [Mr B], daughter in law [Ms E], daughter [Ms C], [grandchildren] and [great-grandchildren]. Three of his family members were recently invited to apply for Resolution of Status (ROS) visas.
The applicant’s Russian ethnicity places him at further risk of discrimination and social exclusion in Ukraine. He would face prejudice, hostility and limited access to resources. Russian is his primary language, and he does not speak Ukrainian fluently.
Supporting documents
The following documents were provided in support of the applicant’s claims to the Tribunal:
a.Legal submission with relevant country information.
b.Applicant’s statutory declaration dated 6 November 2024.
c.Statement of [Mr B] (son in Australia).
d.Statement of [Ms C] (daughter now in Australia).
e.Statement of [Ms D] (daughter in Ukraine).
f.Statements from [Ms F] (friend), [Ms G] (granddaughter), [Ms E] (daughter in law).
g.Medical report form [Doctor H] dated 24 October 2024.
h.Copies of ROS offers to [named persons].
i.Numerous articles relating to the conflict in Ukraine.
Evidence at hearing
The Tribunal was mindful at hearing of the applicant’s physical and mental health conditions. As the representative had submitted detailed information about the applicant’s circumstances and claims, in additional to detailed country information, I limited my questioning to areas which required clarification or confirmation.
The applicant said that his daughter [Ms D] is his only family member remaining in Ukraine and that she lives with her de facto partner in a rented apartment in Odessa. When asked if [Ms D] is [an occupation 1], as stated in the delegate’s decision, and he said that she is [an occupation 2], or [related occupation]. He confirmed that he owns a home in [Town] and that it now belongs to [Ms C], but distant relatives are living there as ‘it needs to be cared for’. He said that he last spoke to [Ms D] one week ago and she was recovering from [surgery] and unable to work.
When asked why he decided to remain in Australia in 2015, given that he had visited on many previous occasions, the applicant said that his health was deteriorating at that time and life was getting too difficult for him in Ukraine.
I sought to clarify if the applicant has the right to reside and enter in any other country, other than Ukraine, given that he had referred in his visa application to an inter-governmental agreement which gives Ukrainian citizens access to other former USSR states. He appeared confused by the question and was unable to provide further details.
Four witnesses attended the hearing to give evidence in support of the applicant’s claims. Given that I was satisfied with the reliability of the evidence presented in the written submissions and supporting statements, I did not find it necessary to take oral evidence from the witnesses.
CRITERIA FOR 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.
REASONS AND FINDINGS
The issue in this case is whether the applicant satisfies the criteria for a protection visa either because he is a refugee or a person entitled to complementary protection. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The applicant’s nationality is not an issue. He travelled to Australia on a valid Ukrainian passport and has consistently stated in documentation that he is a national of Ukraine. The delegate did not indicate any concerns about the applicant’s identity or nationality. Therefore, I am satisfied the applicant is a national of Ukraine and I have assessed his claims against Ukraine as his receiving country.
It is important to acknowledge that the situation in Ukraine has changed significantly since the delegate’s decision. Since the Russian invasion of Ukraine in February 2022, people living in Ukraine have been subject to relentless attacks which resulted in large numbers of fatalities and injuries to residents, as well as destroying essential infrastructure and impeding the delivery of basic services. I also acknowledge that the applicant’s personal circumstances have changed significantly over that time. His health has deteriorated with age and he now has only one family member residing in Ukraine.
I found the applicant’s oral and documentary evidence to be consistent and reliable. The comprehensive legal submission provides independent information which corroborates the applicant’s claimed circumstances.
Having considered the available evidence I make the following findings:
The applicant is of Russian ethnicity and has lived in Ukraine since the country gained independence.
He has multiple health problems which limit his mobility and ability to live independently.
He is cared for by an extended family network in Australia.
His only family member remaining in Ukraine is his daughter [Ms D].
He felt increasingly alienated as a Russian living in Ukraine in the context of anti-Russian sentiment.
He fears for his safety returning to Ukraine as he cannot care for himself and will be vulnerable as an elderly man with serious physical and mental health conditions.
Does the applicant satisfy the refugee criterion for protection?
The applicant’s home area is Odessa in Ukraine. I have considered whether he can return to Odessa and be cared for his daughter [Ms D]. I note that the delegate stated that she is [an occupation 1], however the applicant said that she is [an occupation 2], which is a [work sector] professional. In her written statement [Ms D] claims that she has recently had [surgery] and is unable to care for her father. She has not stated that she has a permanent injury which would inhibit her longer-term mobility or ability to work. She lives with her de facto partner in a rented apartment in Odessa. I do not accept the representative’s assertion that she cannot care for her father because she lives ‘far away’ from his home and because of her health problems. The applicant’s home is only [Distance] km from the centre of Odessa, therefore it would be open to [Ms D] to live with her father in his home in [Town], or for the applicant to live in [Ms D]’s home in Odessa. I find that [Ms D] is [Age]years old and has the capacity to care for her father if he returns to Ukraine. On that basis, I next considered if there is a real chance that the applicant would face serious harm in Ukraine if he lives with [Ms D] and is supported by her.
I have had regard to an array of country information in respect to the environment in the Odessa region, including the following:
1. A United Nations report in March 2024 described the humanitarian crisis in Odessa -
“Lisa Doughten, Director of Financing and Partnerships, Office for the
Coordination of Humanitarian Affairs (OCHA) — speaking on behalf of Under-
     Secretary-General for Humanitarian Affairs and Emergency Relief
     Coordinator Martin Griffiths — said that the latest wave of escalatory attacks
     in Odessa, Kharkiv, Sumy and Donetsk regions over the past few days shows
     how the conflict continues to inflict immeasurable human suffering, death
and destruction. The recent attacks have left many other civilians without electricity,     heat and water and rendered thousands homeless and in need of humanitarian assistance.”[1]
[1] UN Press, ‘Spike in Deadly Russian Attacks on Odessa,’ dated 8 March 2024,
1. On 10 July 2024 Reuters reported a Russian assault on Odessa’s port facilities, which led to the deaths of two civilians and inflicted significant damage on port infrastructure essential for Ukrainian exports. The region's port facilities have been regularly attacked by long-range strikes by Moscow. Russia, which launched its full-scale invasion in February 2022, has repeatedly denied targeting civilians or civilian infrastructure in Ukraine.[2]
1. The United Nations Office in Ukraine reported that in September 2024 alone, 208 civilians were killed, with 46% of those killed being over the age of 60. There was widespread devastation across Odessa city.[3]
1. Because of the war, 24% of the general population lives below the poverty line (5%
before February 2022), and the elders are far more affected by precariousness. In
fact, 80% of Ukrainian seniors were living below the poverty line in 2023.[4]
[2] Reuters, ‘Russian attack on Ukraine's Odessa region kills two, damages port, Ukraine says,’ dated 11 July 2024, < UN OHCHR, ‘Oct. 2024 – Attacks in Odessa Cause Civilian Harm Amid Rising Monthly Casualty Numbers,’
[4] Federation Internationale, ‘The impact of the war in Ukraine on the elderly,’ dated 1 February 2024,
<>
The applicant’s representative submits that the ongoing and unpredictable nature of the conflict in Odessa, poses significant threats to civilians. This means that the applicant, given his age and health conditions, would be particularly vulnerable to such attacks. The destruction of residential areas and essential facilities compromises the safety and well-being of individuals in the region, which demonstrate the real and immediate dangers present to the applicant. I accept this argument.
A 2023 Amnesty International report found that older people, who make up one-fourth of Ukraine’s population, have faced unique violations of their human rights since Russia’s full-scale invasion. Disproportionately among those killed or injured during the conflict, they also struggle in displacement to access housing, support services, and healthcare on an equal basis with others. Many are displaced to safer parts of Ukraine, but they often face insurmountable hurdles in their efforts to rebuild an autonomous and dignified life, struggling to access housing, support services and healthcare on an equal basis with others. “Because most temporary shelters are physically inaccessible to older people with disabilities, and private accommodation is unaffordable to them due to extremely low pensions and rising rents, older people in Ukraine are often placed in segregated institutional settings, where they are isolated from their communities and loved ones.” [5]
[5] Ukraine: “They live in the dark”: Older people’s isolation and inadequate access to housing amid Russia’s invasion of Ukraine - Amnesty International
While I find that the applicant could be supported by [Ms D] in Odessa or [Town], I find that he would be living in a war zone where physical attacks are probable, and the provision of basic services is unreliable. As a dependent, highly vulnerable aged man, I find that the chance of serious harm is real.

I have considered the applicant’s claim that his Russian ethnicity increases his vulnerability because ‘Russophobia’ is widespread In Ukraine and extensive social, cultural and linguistic suppression is faced by Russian-speaking communities.[6]
[6] UN Press, ‘‘Russophobia’ Term Used to Justify Moscow’s War Crimes in Ukraine, Historian Tells Security
Council,’ dated 14 March 2023, <>
Council of Europe data indicates that the Odessa region is ethnically diverse with approximately 17% of the population being of Russian ethnicity.[7] I acknowledge that the Russian language and cultural activities have been discouraged since 2014 and that Russian monuments and public building/spaces have either been removed or renamed in Ukraine. I also acknowledge that such anti-Russian sentiment led to the applicant feeling socially alienated and that he may have experienced hostility from some members of the community. However, he lived in his own home, he received a government pension and he has not claimed that he was denied basic services or physically harmed because of his Russian identity. If the applicant returns to Odessa now or in the reasonably foreseeable future, I accept that he may face social discrimination on the basis of his Russian ethnicity. I am not satisfied however that he will face official discrimination or be denied basic services on the basis of his ethnicity.
[7]
The applicant has not claimed that he was ever politically active in Ukraine, although he has suggested that he may be considered to have pro-Russian views because of his Russian ethnicity. While mindful that the Ukrainian government is currently fighting a war against Russia, there is no evidence before me that Ukrainian authorities are targeting or discriminating against Ukrainian citizens of Russian ethnicity. Therefore I am not satisfied that the applicant will face serious harm on the basis of actual or imputed political opinion.
Section 5J(4)(a) requires that, if a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), that the reason must be the essential and significant reason for the persecution. Although I accept that the applicant may experience social discrimination in Ukraine because of his Russian identity, particularly in the context of the current war, I am not satisfied that his ethnicity or associated imputed political opinion is the essential and significant reason for the persecution.
Having regard to the applicant’s specific circumstances, I am not satisfied, however, that the harm is for one of the reasons set out in s 5J(1)(a). Accordingly I am not satisfied that the applicant satisfies s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The 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. ‘Significant harm’ is exclusively defined in s.36(2A) as follows:
(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.
Under s 36(2B)(c) of the Act there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s36(2)(c) will apply where a real risk is faced by an individual applicant but is the same as the risk faced by the general population.
The medical report from [Dr H] states, relevantly, that:
o   the applicant is on medication prescribed by his cardiologist and that medication is not available in Ukraine.
o   He needs assistance and physical support with walking, using stairs and walking distances more than 50 metres.
o   He underwent [surgery] in 2022 and is on a special diet.
o   He would not cope with travelling long distances and does not tolerate stressful situations.
I find that the applicant is [Age] years old. He has multiple, serious medical conditions which require daily medication. He cannot live independently as he requires assistance with daily activities of living. His suffers from anxiety and depression and his heart condition is exacerbated by stress. I find that the applicant would be returning to a war zone in Ukraine where access to electricity, gas, transport and food is unpredictable. The frequent drone and missile attacks require residents to seek safety in bomb shelters. The applicant’s limited mobility means that he would be unable to seek safety in bomb shelters. The frequent disruption to basic services means that he may not be able to access the diet he requires or the medications on which he relies. I also accept that such a stressful environment is likely to exacerbate his cardiac condition. While I have found that he could live with, and be supported by, his daughter [Ms D], I am not satisfied that her support would reduce the harm the applicant would face from living in a war zone to anything less than significant.
Having regard to the situation in Ukraine, and to the Odessa region in particular, I am satisfied that if the applicant returns to Ukraine there is a real risk that he will face significant harm. He may be injured or killed as a result of attacks on the Odessa region, and he may be subjected to cruel or inhuman treatment if he is unable to access appropriate food, shelter or medical treatment.
I am not satisfied that the applicant can safely relocate within Ukraine given that the entire country is at risk of Russian attack, and that the applicant is a vulnerable elderly man requiring care, whose only family member lives in Odessa.
I find that the applicant cannot seek protection from an authority that reduces the risk of significant harm, as the Ukrainian authorities are engaged in a war with Russia. While I am satisfied that the Ukrainian authorities are endeavouring to protect their citizens, their ability to protect an elderly, vulnerable man in a war environment is extremely limited.
I acknowledge that all citizens of Ukraine are at risk as a result of the Russian invasion. I am satisfied, however, that the risk faced by the applicant is not the same as the risk faced by the general population, as the applicant is [Age] years of age, has serious medical conditions and requires care. Unlike the general population, he would be unable to move quickly to bomb shelters for safety, he could not relocate without significant assistance and he cannot access food and basic services without intervention from others.
When asked if he had the right to enter and reside in another country, the applicant stated in the visa application that, under an Intergovernmental Agreement, Ukrainians can enter some parts of the former USSR. My research indicates that since 1997 there has been an agreement between Russia and Ukraine on visa-free travel for citizens of both countries. This agreement was terminated in January 2023. It is reported that President Putin signed a decree in September 2023 which facilitates the entry of Ukrainian citizens to Russia upon production of a Ukrainian passport or identity card, however the conditions of entry and duration of stay are unstated.[8] It is reported that Ukrainians wishing to enter Russia must arrive only through Sheremetyevo International Airport (Moscow) and are interrogated by the Federal Security Service before being permitted to enter. It appears that they are restricted to a 90 day visit however this appears to be subject to various factors and is not a certainty. [9] I am not satisfied that there is reliable evidence to indicate that the applicant has the right to enter and reside in a third country. Accordingly, I find that s.36(3) of the Act does not apply to the applicant in this case.
[8] Putin facilitates entry of Ukrainians to Russia. Anadolu Ajansi. 30 September 2023 Putin facilitates entry of Ukrainians to Russia
[9] Visa requirements for Ukrainian citizens - Wikipedia
Having considered the applicant’s circumstances individually and cumulatively, I find that there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Ukraine, there is a real risk that the applicant will suffer significant harm.
I find that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(aa) of the Migration Act.
Hearing date:  15 November 2024
Representative for the applicant:      Ms Nina Merlino
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.
…

dated 11 October 2024, <

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Citations

2010781 (Refugee) [2024] ARTA 565

Cases Citing This Decision

Cases Cited

Statutory Material Cited

SZSPT v MIBP [2014] FCA 1245

MZAAJ v MIBP [2015] FCA 478

ADH17 v Minister for Immigration and Border Protection [2020] FCA 53