2011356 (Refugee)

2011356 (Refugee) [2024] AATA 4279 (23 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2011356
COUNTRY OF REFERENCE:                   Ukraine
MEMBER:Alicia Bills
DATE:23 July 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 23 July 2024 at 12:22pm
CATCHWORDS
REFUGEE – protection visa – Ukraine – resident of Donetsk region – Russian invasion and war – applicant’s particular vulnerability because of age and having no male relatives there – country information – ongoing attacks and increasing civilian casualties and refugees – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 18 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 citizen of Ukraine, applied for the visa on 9 June 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment to this decision.
After consideration of the material before the Tribunal, the Tribunal was able to decide the review without conducting a hearing. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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.
EVIDENCE AND SUBMISSIONS BEFORE THE TRIBUNAL
Country of nationality
The applicant travelled to Australia on an apparently genuine Ukrainian passport, a copy of which is contained in the material before the Tribunal. The applicant has at all times maintained that she is a citizen of Ukraine. The Tribunal is satisfied that the applicant is a national of Ukraine and has assessed her claims against Ukraine as her country of nationality and the receiving country.
The applicant’s background and travel to Australia
The applicant is currently [Age] years of age. She was born in [Year] in [City] in the former Union of Soviet Socialist Republics. From [Year] onwards the applicant lived in Donetsk. In 1991 following the dissolution of the Union of Soviet Socialist Republics the applicant acquired Ukrainian citizenship. Donetsk is located in Eastern Ukraine, close to the border with Russia.
The applicant has two adult children, being a son and a daughter. The applicant’s son is resident in Australia. The applicant’s husband died in [Year]. Between January 2003 and April 2003 the applicant travelled to Australia on a sponsored family visa.
In March 2016 the applicant travelled to Australia on a visitor visa. The applicant has remained in Australia since her arrival in March 2016.
Protection visa application form
In June 2016 the applicant applied for a protection visa.
In her protection visa application form the applicant stated the following as her reasons for leaving Ukraine and claiming protection in Australia:
I am seeking protection in Australia so that I do not have to return to (name of country):
Ukraine (It’s part now known as Donetsk People's Republic, DPR)
Why did you leave that country?
I left the country to visit my son and his family, and to escape war zone.
What do you think will happen to you if you return to that country?
Considering my age ([Age]y.o.) and the fact that I have no living male relative in Donetsk and Ukraine to provide me with any kind of protection and support, I am really frightened to return to Donetsk (DPR). I strongly believe that if I return home I will be exposed to violence and harm common in war zones. Also, I am afraid to live in my apartment because in the past there were cases when elderly people were taken away from their accommodation and it was used to accommodate military personnel during the war between Ukrainian forces and DPR's rebels. Also, it will be emotionally and psychologically very terrifying as I had experienced severe gunfire, shelling and bombing as a child during the WWII.
Did you experience harm in that country?
I was very terrified in May – July 2014 when the city of Donetsk including the area where I live was under constant fire and bombing from Ukrainian military forces. I was very stressed as I had to go through the same life threatening experience as when I was a child during the WWII.
Did you seek help within that country after the harm?
I have not sought help because no one could really stop shelling or bombing. It is beyond the city authority’s control.
Did you move, or try to move, to another part of that country to seek safety?
I have not tried to move to another part of the country because of my age and inability to move anywhere independently. Unfortunately, I have no one being able to assist me to move, as my husband has died in [Year].
Do you think you will be harmed or mistreated if you return to that country?
Because I am a female elderly without male’s protection, I feel myself very vulnerable and being exposed to harm and mistreatment since the military conflict in Donetsk has escalated recently. As more military personnel is arriving to the city, the likelihood of my apartment being taken from me is increasing. That would be military commanders responsible for this under the name of war order.
Do you think the authorities of that country can and will protect you if you go back?
The authorities of DPR are involved in the war with Ukraine and would not do much to protect civilians.
Do you think you would be able to relocate within that country?
I would not be able to relocate because of my age and inability to move anywhere independently. My husband has died in [Year] and I have no one to being able to assist me with relocation.
In support of her application the applicant provided the delegate with a news article dated 10 February 2020 entitled ‘DPR reported 50 truce violations by the security forces in one week’. Extracts of the article are as follows:
Ukrainian security forces violated the ceasefire in Donbas 50 times last week, a representative of this self-proclaimed Donetsk People's Republic told journalists on Monday.
Earlier, the agency reported that 53 violations of the ceasefire regime by Ukrainian law enforcers were recorded from 27 January to 3 February.
In April 2014, the Ukrainian authorities launched a military operation against the self-declared … DPR, which declared independence after the state revolution in Ukraine in February 2014. According to the latest UN data, about 13,000 people fell victim to the conflict.[1]
[1] ‘DPR reported 50 truce violations by the security forces in one week’ News Front 10 February 2020
On 19 February 2020 the applicant participated in an interview with the delegate. The applicant stated that she was claiming protection in Australia because her region in Ukraine was still not stable. The applicant lived near to the conflict zone. There were still military activities. These activities had destroyed the local kindy and school next to her apartment building. The infrastructure had been completely destroyed and the applicant would not be able to access health care and medicine.
On 18 June 2020 the delegate refused the applicant’s application for a protection visa not being satisfied that the applicant was a person in respect of whom Australia has protection obligations.
In June 2024 the applicant provided a written statement to the Tribunal confirming that she had been granted a Temporary (Humanitarian Concern) visa because she was a person from an area of active military conflict in Eastern Ukraine. The applicant attached a Departmental record which confirmed the visa was granted on 1 September 2022 and it has a recorded length of stay until 1 September 2025.
Country information
The Tribunal has considered the following country information:
‘War in Ukraine’, Center for Preventative Action, 20 May 2024
Armed conflict in eastern Ukraine erupted in early 2014 following Russia's annexation of Crimea. The previous year, protests in Ukraine's capital, Kyiv, against Ukrainian president Viktor Yanukovych’s decision to reject a deal for greater economic integration with the European Union (EU) were met with a violent crackdown by state security forces. The protests widened, escalating the conflict, and President Yanukovych fled the country in February 2014.
One month later, in March 2014, Russian troops took control of the Ukrainian region of Crimea. Russian President Vladimir Putin cited the need to protect the rights of Russian citizens and Russian speakers in Crimea and southeast Ukraine. Russia then formally annexed the peninsula after Crimeans voted to join the Russian Federation in a disputed local referendum. The crisis heightened ethnic divisions, and two months later, pro-Russian separatists in the eastern Ukrainian regions of Donetsk and Luhansk held their own independence referendums.
Armed conflict in the regions quickly broke out between Russian-backed forces and the Ukrainian military. Russia denied military involvement but both Ukraine and the North Atlantic Treaty Organization (NATO) reported the buildup of Russian troops and military equipment near Donetsk and Russian cross-border shelling immediately following Crimea’s annexation. The conflict transitioned to an active stalemate, with regular shelling and skirmishes occurring along front lines separating Russian and Ukrainian controlled eastern border regions.
In April 2016, NATO announced the deployment of four battalions to Eastern Europe … In September 2017, the United States also deployed two U.S. Army tank brigades.
In early February 2022, satellite imagery showed the largest deployment of Russian troops to its border with Belarus since the end of the Cold War. Negotiations between the United States, Russia, and European powers- including France and Germany- failed to bring about a resolution. In late February 2022, the United States warned that Russia intended to invade Ukraine, citing Russia’s growing military presence at the Russia- Ukraine border.
On February 24, 2022, during a last-ditch UN Security Council effort to dissuade Russia from attacking Ukraine, Putin announced the beginning of a full scale land, sea, and air invasion of Ukraine, targeting Ukrainian military assets and cities across the country. Putin claimed that the goal of the operation was to demilitarize and denazify Ukraine and end the alleged genocide of Russians in Ukrainian territory. [2]
[2] War in Ukraine | Global Conflict Tracker (cfr.org)
‘Mapping the occupied Ukraine regions Russia is formally annexing’, Al Jazeera, 21 September 2022
Russia has formally announced the annexation of four partially occupied provinces of eastern and southern Ukraine.
The move on Friday came days after voters in Donetsk, Luhansk, Kherson and Zaporizhia overwhelmingly backed their provinces joining Russia, according to referendums rejected by the government in Kyiv and its Western allies as meaningless and illegal.[3]
[3] Mapping the occupied Ukraine regions Russia is formally annexing | Russia-Ukraine war News | Al Jazeera
‘Russia ‘systematically forcing Ukrainians to accept citizenship, US report finds’, The Guardian 3 August 2023
Ukrainians living in Russian-occupied territory are being forced to assume Russian citizenship or face retaliation, including possible deportation or detention, a new US report has said.
Yale University researchers found that residents of the Luhansk, Donetsk, Kherson and Zaporizhzhia regions were being targeted by a systematic effort to strip them of Ukrainian identity.[4]
[4] Russia ‘systematically’ forcing Ukrainians to accept citizenship, US report finds | Ukraine | The Guardian
Ukraine Situation Update, UNHCR, Regional Bureau for Europe, 13 October 2023
Regular missile, drone and shelling attacks continue to strike communities across Ukraine, taking a heavy toll on civilians and damaging civilian infrastructure. On 5 October, Russian forces shelled a cafe in a village in Kharkivska oblast in eastern Ukraine, killing at least 52 people including a six-year-old boy, and injured many more.
On 6 October, Russian forces strike on Kharkiv city killed multiple civilians, damaged dozens of homes and a hotel frequently used by humanitarian workers.
From 1 to 24 September, OHCHR recorded 554 civilian casualties in Ukraine, (111 killed and 443 injured), bringing the total number of civilian casualties since the start of Russia's full scale invasion of Ukraine to 27,449: 9,701 killed and 17,748 injured.
5,831,200 refugees from Ukraine recorded in Europe (as of 10 Oct).[5]
[5] UNHCR Regional Bureau for Europe, Ukraine Situation Update 13 October 2023
Ukraine Situation Report, OCHA, 24 May 2024
In 2024, Ukraine has faced intensified attacks, resulting in increased civilian casualties and devastation in front-line areas and across the country, notably in the northeast.
From January to March, the humanitarian situation in Ukraine continued to deepen. Waves of attacks had a devastating impact on civilians, and vital services were disrupted for hundreds of thousands of people across the country at the height of winter. Since the start of the year through March 2024, people across Ukraine - Kharkiv, Kherson, Kyiv, Lviv, Mykolaiv, Odesa, Zaporizhzhia and elsewhere - have suffered from massive waves of attacks, which have killed and injured civilians and damaged houses and critical civilian infrastructure.
The United Nations Human Rights Monitoring Mission in Ukraine (HRMMU) verified that 640 people had been killed or injured in January and 500 in February, noting an alarming increase in the number of children affected, with 40 child casualties reported in January alone. Strikes on critical infrastructure led to major disruptions of essential services such as electricity, water, and gas for hundreds of thousands of people.[6]
[6] OCHA Ukraine Situation Report 24 May 2024
‘They Live in the Dark’ Older People’s Isolation and Inadequate Access to Housing amid Russia’s Invasion of Ukraine, Amnesty International, 2023
Russia's full-scale invasion of Ukraine, which began on 24 February 2022, has separated millions of families and upturned countless lives. Throughout its war of aggression, Russia has shown little regard for civilian life or property, launching indiscriminate attacks on Ukrainian cities and towns, arbitrarily detaining and extrajudicially executing civilians, and organising the forcible transfer and deportation of many people living in Russian-occupied territory. At least 27,000 civilians have been injured or killed as of September 2023, according to the United Nations (UN). The real toll is much higher. While people of all ages have suffered greatly, older people who make up nearly one-fourth of the population in Ukraine, face particularly devastating risks.
Older people have comprised a disproportionate number of civilian casualties during the war in Ukraine. They often stay behind in conflict-affected areas, whether because they have disabilities that make fleeing impossible or because they are reluctant to abandon their homes, which are usually there finally valuable asset. But even after being displaced to safer parts of Ukraine, older people have 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.[7]
[7] Amnesty International They Live in the Dark’ Older People’s Isolation and Inadequate Access to Housing amid Russia’s Invasion of Ukraine, 2023
U.S. Department of State Country Report on Human Rights Practices: Ukraine – Russia-occupied Areas
There were numerous, documented reports of Russia's forces or their proxies committing arbitrary or unlawful killings in all occupied areas, including Crimea, Donetsk, Kherson, Luhansk and Zaporizhzhia Oblasts, during the year.
Russia's military forces detained individuals during ‘filtration’ operations in occupied territory, a process used to seek to identify possible affiliation with or support for the Ukrainian armed forces or authorities and to collect information regarding residents in occupied territory. According to the OHCHR, detentions during ‘filtration’ were in most cases arbitrary … Russia's forces held civilian detainees for periods ranging from several days to weeks or months, often incommunicado in unofficial places of detention. The Ukrainian NGO ZMINA documented 562 cases of abduction between February 2022 and June. The largest number of abductions took place in Kherson and Donetsk oblasts.
Russia's forces reportedly employed systematic torture and abuse against the thousands of captured Ukrainian military POWs and detained civilians. Nearly all released captives recounted torture and other physical abuse at the hands of Russia's forces, according to a July report by the OHCHR. Detainees were routinely held incommunicado and in official places of detention, where they were tortured, including through use of sexual violence, to extract forced confessions, disclose information, or compel cooperation.
There were numerous reports documenting inhuman and degrading treatment of detained detainees by Russia's forces and their proxies in Crimea, Donetsk, Kharkiv, Kherson, Luhansk and Zaporizhzhia Oblast … according to ZMINA, Russia’s forces employed torture against civilians as a tool of suppressing resistance. Tactics included electrocution, beatings, psychological abuse, and forcing individuals to witness the torture of other detainees.[8]
Children’s hospital targeted in Russian daytime missile strike, at least 28 dead in attacks across the country’ ABC News, 8 July 2024
At least 28 people have been killed and almost 100 others injured as Russia launched a barrage of missiles on Kyiv and other Ukrainian cities, including a key children's hospital.
On Monday local time, Russian forces fired more than 40 missiles targeting different cities and damaging infrastructure, commercial and residential buildings in different Ukrainian cities, President Volodymyr Zelenskyy said.
In Kryviy Rih, the native city of Mr Zelenskyy, 10 people were killed and 47 were injured, said Mayor Oleksandr Vilkul.
Another three people died in Pokrovsk in eastern Ukraine when missiles hit an industrial facility, said Donestk's regional governor.[9]
[8] 2023 Country Report on Human Rights Practices: Ukraine: Ukraine – Russia-occupied Areas
[9] Children's hospital targeted in Russian daytime missile strike, at least 28 dead in attacks across the country - ABC News
TRIBUNAL CONSIDERATION

I accept the evidence of the applicant that is before the Tribunal. I accept the country information available to the Tribunal. Based on the evidence of the applicant and the country information I make the following findings.
For a period of time prior to March 2014 Crimea was part of Ukraine. In March 2014 Russian forces took control of Crimea with Russian President Vladimir Putin citing the need to protect the rights of Russian citizens in Crimea and southeast Ukraine. This crisis heightened existing ethnic divisions and two months later pro-Russian separatists in Donetsk held their own independence referendum. Armed conflict broke out between Russian backed forces and Ukrainian military. The conflict continued but transitioned to a stalemate. In April 2016 NATO and the United States Army deployed military support.
In February 2022 Russian President Vladimir Putin announced an invasion of Ukraine with the goal of demilitarising and denazifying Ukraine. Since September 2022 Donetsk has been occupied by Russian forces. There are numerous documented reports of Russian forces having committed arbitrary or unlawful killings in Russian occupied areas, including Donetsk. There are numerous documented reports of Russian forces committing acts of inhuman and degrading treatment in Russian occupied areas, including Donetsk.
As at 10 October 2023 there were 5,831,200 refugees from Ukraine recorded in Europe. The total number of civilian casualties since the start of Russia’s invasion of Ukraine amounted to 27,449 with 9,701 people killed and 17,748 people injured. Regular indiscriminate missile, drone and shelling attacks continue to occur across Ukraine. On 8 July 2024, 28 people were killed and 100 injured after Russian forces launched missiles across cities in Ukraine.
The applicant was born in [Year] in [City] in the former Union of Soviet Socialist Republics. From [Year] onwards the applicant lived in Donetsk. In 1991 following the dissolution of the Union of Soviet Socialist Republics the applicant acquired Ukrainian citizenship.
The applicant left her home town of Donetsk in 2016 due to the active military conflict occurring at that time between Ukraine and Russia. The applicant currently fears returning to Ukraine because of the active military conflict in Eastern Ukraine. I am satisfied that the applicant’s fear arises from her nationality, being a Ukrainian national.
I am satisfied that there is a real chance that, if the applicant returned to Donetsk, now, or in the reasonably foreseeable future, she would be persecuted because of her nationality. The applicant is a Ukrainian national and would be returning to an area that is now occupied by Russian forces. The Russian forces are committing ongoing attacks against Ukrainian civilians. The chance of the applicant being persecuted is not remote or far-fetched, it is substantial.
I am satisfied that the real chance of persecution relates to all areas of Ukraine. Russian forces are committing regular indiscriminate attacks against Ukrainian civilians across the country resulting in significant casualties.
I am satisfied that the applicant’s nationality would be the essential and significant reason she would face persecution. The Russian President Vladimir Putin has been transparent in his purpose for the invasion of Ukraine to protect the rights of Russian citizens at the cost of Ukrainian citizens. I am satisfied that the persecution would involve systematic and discriminatory conduct because the attacks carried out by the Russian forces have been deliberate and pre-meditated. I am satisfied that the persecution would involve serious harm because the Russian forces have been committing acts of inhuman and degrading treatment and arbitrary killings against Ukrainian civilians. This constitutes a threat to life and liberty and significant physical ill-treatment.
I am satisfied that effective protection measures are not available to the applicant, because in the current climate of the Russian invasion, the Ukrainian authorities are not able to offer durable protection against the persecution.
I am satisfied that the applicant is not able to modify her behaviour so as to avoid a real chance of persecution as it would require the applicant to conceal her nationality.
I am satisfied that there is no evidence before me which indicates that the applicant has a right to enter and reside in a country other than her home country of Ukraine.
I am satisfied that the applicant is outside the country of her nationality, and, owing to a well-founded fear of persecution, is unable to avail herself of the protection of that country.
Conclusion
I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Migration Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Alicia Bills
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 4279

23 July 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Natural Justice