2012515 (Refugee)

2012515 (Refugee) [2023] AATA 2243 (21 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr James Davidson
CASE NUMBER: 2012515

COUNTRY OF REFERENCE: Burma (Myanmar)
MEMBER:Shahyar Roushan
DATE:21 April 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 21 April 2023 at 11:05am
CATCHWORDS
REFUGEE – protection visa – Myanmar – race – Karen – political opinion – pro-democracy demonstrations – particular social group – failed asylum seeker – torture – detention – employment – postings on social media – protests in Australia – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicants are husband, wife and their son. They are nationals of Myanmar, ethnically Karen and Christians. They arrived in Australia [in] February 2019 as holders of [Visitor visas].
On 21 April 2019, the first named applicant (the applicant) lodged an application for a Protection visa and included the second named applicant (the applicant wife) and the third named applicant (the applicant son) in the application as members of the same family unit. They did not put forward their own claims for protection before the Department and sought to rely on the applicant’s claims.
On 17 July 2020, a delegate of the Minister for Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).
CLAIMS AND EVIDENCE
Protection visa application
According to his Protection visa application, the applicant is [age] years old. He was born in and resided in Yangon until his departure from Myanmar. After completing his schooling, he entered university but did not complete his tertiary education. He married his wife in 1990 and, other than the applicant son, they have a daughter who is currently in Myanmar. Immediately prior to his departure from Myanmar, the applicant was self-employed as [an Occupation 1].
In response to questions in relation to his reasons for claiming protection, the applicant made the following claims.
He and his family belong to the Karen ethnic minority group. They have experienced harm in the past and fear facing persecution by the Myanmar authorities.
In 1988, the applicant was arrested for participating in pro-democracy demonstrations. He was ‘tortured’ and forced to carry out hard labour. He and his wife were also fired from their jobs. Therefore, there will be serious consequences for the family if they were to b removed to Myanmar.
In a statutory declaration dated 6 May 2019, the applicant provided the following additional information.
He and his family were subjected to mistreatment and discrimination in Myanmar by the military, nationalists and extremist monks.
In 1980, he was arrested and mistreated after making plans to join the ‘rebels’. Subsequently, he refused to comply with demands to spy on his neighbours.
In July 1988, he actively participated in pro-democracy protests, which led to his arrest. He was taken to prison at [a named location] for two months where he was tortured and forced into hard labour. Following his release, he was fired from his job and was watched continuously.
In August 1992, his Karen ward was surrounded by soldiers after Karen National Union (KNU) paramilitaries attacked parts of the Irrawaddy region. As he was ‘blacklisted’, he was arrested along with other men. He was taken on a truck to a [venue] where he was interrogated, tortured and imprisoned for two weeks. After he was released, his wife, [an Occupation 2], was fired from her job, and they struggled financially. Eventually, he found work as [an Occupation 3] and his wife began working at a local clinic.
As [an Occupation 3], he [travelled] from the borders of Thailand and China to the cities. However, he also transported personnel, information, materials and equipment for ‘the underground’.
From 1994 to 2000, his family supported the National League for Democracy (NLD) and visited [a named leader’s] home and office many times to show their support. As a result, his ‘ward leaders’ watched them and gave them ‘a lot of trouble’.
In 2015, the NLD won the elections, but it resulted in ‘land disputes’. In 2018 and 2019 he participated in a number of demonstrations. In February 2019, he joined a demonstration in [a location] to protest against a plan to erect a statue of [a leader] in Kayah state, which led to his arrest. He was mistreated and threatened with being charged for disturbing the peace, which could result in life imprisonment. Subsequently, he started looking for opportunities to leave Myanmar and applied for a tourist visa to Australia.
The interview
The applicant attended an interview with the Department on 26 May 2020 via teleconference. The interview was conducted with the assistance of an interpreter in the Burmese and English languages.
The delegate’s decision
The delegate accepted that the applicant is an ethnic Karen and a Christian, and that he may have faced some low-level discrimination in the past due to his religion and ethnicity. The delegate also accepted that the applicant had participated in pro-democracy demonstrations in the 1980s. However, she did not accept that he had been arrested, detained and mistreated as a result. The delegate did not accept the applicant has faced travel restrictions or significant discrimination in Myanmar due to his religion and ethnicity. Nor did she accept that he was involved in any political activities in 2018 and 2019. The delegate further rejected the applicant’s claims at the interview that his daughter, who had remained in Myanmar, was questioned by the authorities in relation to his whereabouts and was physically abused following his departure. She did not accept that the applicant has a profile as a political activist in Myanmar or that he is wanted by the Myanmar authorities due to his political activities many years earlier. The delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Myanmar on the basis of his claims.
In her decision record, the delegate noted that the applicant and the third named applicant had provided insufficient evidence of their familial relationship and that she could not make a determination as to whether the third named applicant is a member of the same family unit as the applicant.
The review application
On 5 August 2020, the applicant applied for a review of the delegate’s decision to the Tribunal. In support of his review application, the applicant provided a submission expressing disagreement with the delegate’s assessment and findings in relation to his claims.
In a number of submissions provided in June 2022, the applicant stated that he has been ‘actively fighting’ against the military rule in Myanmar whilst awaiting the outcome of his application. He stated that there is no safety for civilians and political activists in Myanmar. In support of his submissions, the applicant forwarded photographs, depicting him participating in demonstrations in Sydney and Canberra, as well as news reports and articles in relation to the situation in Myanmar since the military coup in February 2021.
On 24 February 2023, the applicant appointed Mr James Davidson of Davidson James & Associates as his representative in relation to the review.
On 20 March 2023, the applicant provided further submissions to the Tribunal, contending that he would come to the attention of Myanmar authorities as a consequence of his anti-regime activities through participation in demonstrations and postings on social media platforms. He submitted photographs, depicting him and his family members participation in protest rallies and marches in Australia.
On 21 March 2023, the applicant wrote to the Tribunal, stating:
Due to my issues with memory…, I would respectfully ask for permission to have my wife… participate in my AAT interview on my behalf.
In support of this request, the applicant submitted a letter from [Dr A], [from a named] Clinic, Yangon, dated 19 February 2019, stating that the applicant had complained of delay in speech, slurred speech, ‘difficulty in thinking and talking back’, loss of consciousness for about 15 minutes at home, having trouble following conversations, poor judgement, memory loss, headaches and dizziness. [Dr A] referred to the applicant’s past history of ‘head injury due to assault’ on 13 February 2019 and receiving ‘conservative medical treatment for head injury’ at [a named] hospital. [Dr A] made a provisional diagnosis of ‘cognitive impairment probably due to assault’.
On 23 March 2023, the Tribunal received a detailed submission from Mr Davidson. It was submitted that the applicant would face discrimination in Myanmar because of his Karen ethnicity and that he would be at risk of serious harm by the military regime. Mr Davidson referred to various reports in relation to the human rights situation in Myanmar in support of his submission and noted that the applicant has participated in various demonstrations in Australia to protest against the military junta in Myanmar. He has also been actively involved in fundraising for ‘displaced’ persons and has posted comments on social media platforms, which may attract retaliation from the junta.
It was further submitted that the applicant continues to experience headaches, dizziness, blackouts, speech impediment and memory loss as a result of the mistreatment he experienced following his arrest and detention in 1980, 1988, 1992 and 2019. It was submitted that this claim is supported by [Dr A]’s report of 19 February 2019.
Under the cover of his submission, Mr Davidson provided two separate statutory declarations, declared by the applicant and his wife on 23 March 2023. In his statutory declaration, the applicant addressed the delegate’s concerns and essentially reiterated the claims he had previously put forward. Attached to the applicant’s statutory declaration, was a letter from [Community Organisation 1], stating that the applicant is considered to an outspoken critic of the military junta, he has been actively involved in fundraising events for displaced persons, and he has participated in demonstrations in Sydney and Canberra.
In her statutory declaration, the applicant wife stated that she has worked all her life as [an Occupation 2]. She worked in government [agencies] for seven years in Myanmar, but that in 1996 she was fired from her position as [an Occupation 2] because of her participation in protest rallies against the military junta. Eventually, she managed to secure employment at a private practice through the recommendation of a friend. She worked there for 15 years after which she applied for long service leave to visit Australia. Whilst she did not take an active political role, she supported her husband by attending protests with him, except when she was pregnant.
The applicant wife stated that three weeks after she arrived in Australia, she received a dismissal letter from her employer in Myanmar and her daughter was asked to pick up the letter from her workplace. Following enquiries, she found out that she was dismissed after some people attended her workplace, looking for her in order to ask about her husband’s location. Subsequently, the authorities attended the family home [in] March 2019, [June] 2019, [December] 2019, [March] 2020 and [September] 2022. On the last occasion, the authorities ransacked the family home while her daughter was away. Her daughter has not returned to their family home since then.
The applicant wife stated that she and her husband have regularly sent money to their daughter to be redirected to the Civil Disobedience Movement ([Group 1]) – a [social media] campaign group set up after the coup in 2021.
The applicant wife attached the following documents to her statutory declaration.
- English translations of her marriage certificate and her children’s birth certificates, including the applicant son’s birth certificate.
- Receipts and payment records of money sent to [Group 1].
- Screenshots of certificates issued to the applicant and his wife.
- Screenshots of [social media] posts, criticising the military government.
- Photographs of protest activities she and her family have participated in while in Australia.
The hearing
Having considered the evidence before it, the Tribunal decided that there was sufficient material available to enable it to decide the review in the applicant’s favour without a hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (the complementary protection criterion). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
On the basis of the evidence before it, the Tribunal finds that all three applicants are nationals of Myanmar and Karen Christians.
The applicant
The Tribunal accepts the applicant’s written and oral evidence provided to the Department, and his written submissions in support of the review application indicating that he is a long-standing active opponent of the military rule in Myanmar and has expressed his views through participation in protest activities and demonstrations. The Tribunal accepts that the applicant has been arrested, detained and mistreated in Myanmar in the past. The Tribunal further accepts that the applicant has continued to express his opposition to the military rule in Myanmar and to support Karen rights since his arrival in Australia in 2019, by attending demonstrations, participating in related community activities, sharing his views on social media platforms and making financial contributions to the [Group 1]. The Tribunal is satisfied that the applicant’s activities in Australia represent a genuine expression of his political views and that he has engaged in this conduct otherwise than for the purpose of strengthening his claim to be a refugee.
Since the applicant’s arrival in Australia, the situation in Myanmar has undergone yet another significant and seismic political change. In February 2021, the military once again seized power by rejecting the results of the elections held in November 2020, in which the NLD won in a landslide. Consequently, according to DFAT,
Aung San Suu Kyi and other NLD members were detained, and a state of emergency declared. The coup drew widespread international condemnation and sparked nationwide protests, which were violently repressed. In response, NLD and ethnic party representatives formed a government-in-hiding known as the National Unity Government (NUG). In September 2021, the NUG announced an armed revolutionary struggle against the military regime, which has continued since, along with renewed fighting between the military and various ethnic armed organisations.[1]
[1] DFAT, DFAT Country Information Report – Myanmar, November 2022.
In a recent report on the situation of human rights in Myanmar in the two years after the coup, the United Nations High Commissioner for Human Rights stated:
…the military has brought the country into a perpetual human rights crisis through the continuous use of violence, including killings, arbitrary arrests, torture, forcible disappearances and the prosecution and sentencing of anti-coup opponents…[2]
[2] UN Office of the High Commissioner for Human Rights (OHCHR), Report of the United Nations High Commissioner for Human Rights, Situation of human rights in Myanmar since 1 February 2022, 2 March 2023, A/HRC/52/21.
The report referred to the ‘catastrophic’ human rights situation that continues to fester and noted that conditions have worsened during the second year since the military coup was launched. It stressed:
People throughout the country are exposed to continuing violations of their rights and to crime, including killings, enforced disappearances, displacement, torture, arbitrary arrests and sexual violence. There are reasonable grounds to believe that the military and its affiliated militias are responsible for most of such violations, some of which may constitute crimes against humanity and war crimes.
Forces opposing the military have also committed human rights abuses, in particular in the targeting of non-combatant officials, their family members and others whom they believe to be assisting the military in some way…[3]
[3] Ibid.

In its most recent Country Information Report in relation to Myanmar, DFAT also provided a grim and alarming assessment of the prevailing conditions in the country. Regarding political opinion, DFAT stated:
Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in antiregime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest)… Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.[4] (emphasis added)
[4] DFAT, n1, above.
DFAT assessed,
…anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.[5]
[5] Ibid.
With regard to Karen, DFAT has reported that Military air raids in Kayin State in March and April 2021 not only have destroyed KNU/Karen National Liberation Army military infrastructure, but also homes, schools and public buildings. There are also numerous reports of soldiers committing human rights violations in Kayin State, including killing livestock and extorting villagers for money and food, as well as carrying out arbitrary arrests and torture. Around 400 Karen had been reportedly subjected to arbitrary arrest since the coup and an estimated 40,000 people have been displaced.[6]
[6] Ibid.
The Tribunal finds that the applicant remains inherently opposed to the military regime in Myanmar. Further, the Tribunal finds that the applicant would not return to Myanmar voluntarily should he not succeed in being granted a Protection visa. In such hypothetical circumstances, he would be returning as a failed asylum seeker, and it would be reasonable to assume that the Myanmar authorities would be aware that he was returning in this capacity.
According to DFAT,
given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries…, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[7] (emphasis added)
[7] Ibid.
The Tribunal finds that as a returning failed asylum seeker, the applicant would likely be accused of being opposed to or having criticised the regime regardless of his history, profile, past and/or present activities, or any details concerning the nature of his claims. The Tribunal is of the view that this imputation of anti-regime political opinion would be triggered first and foremost as a consequence of the applicant being removed to Myanmar as a failed asylum seeker. The Tribunal finds that failed asylum seekers in Myanmar constitute a particular social group within the meaning of s 5L of the Act.
Having considered the evidence before it, the Tribunal finds that if the applicant were to be removed to Myanmar, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are his political opinion, ethnicity and his membership of the particular social group of failed asylum seekers in Myanmar. The Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar. As the applicant fears harm by the Myanmar authorities, the Tribunal finds that effective state protection against the harm he fears is not available to him. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Myanmar. The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. It follows that s 36(3) does not apply.
The applicant wife and the applicant son
The applicant wife and the applicant son did not put forward their own claims for protection before the Department and sought to rely on the applicant’s claims. The applicant wife, however, submitted a statutory declaration in support of the application for review, stating that whilst she did not take an active political role, she supported her husband by attending demonstrations with him. The Tribunal accepts this claim. The Tribunal further accepts that she has continued to attend demonstrations against the Burmese military rule since her arrival in Australia. As in the case of the applicant, the Tribunal is satisfied that her activities in Australia represent a genuine expression of her political views and that she has engaged in this conduct otherwise than for the purpose of strengthening her claim to be a refugee.
On the basis of the country information set out above, the Tribunal finds that the applicant wife will be imputed with an anti-regime political opinion if she were to be removed to Myanmar as a failed asylum seeker. This would occur regardless of her history, profile, or the exact nature of her political views.
Accordingly, the Tribunal finds that if the applicant wife were to be removed to Myanmar, there is a real chance that she will be subjected to threats to her life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are her political opinion, ethnicity and her membership of the particular social group of failed asylum seekers in Myanmar. The Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar and that effective state protection against the harm she fears is not available to her. The Tribunal therefore finds that the applicant wife has a well-founded fear of persecution in Myanmar. The Tribunal further finds that s 36(3) does not apply as the applicant wife does not have any presently existing right, however expressed, to enter and reside in any other country.
With regard to the applicant son, the Tribunal does not share the delegate’s concerns in relation to his familial relationship with the applicant and his wife. On the basis of the evidence submitted by the applicant wife in connection with the review application, the Tribunal is satisfied that [the other applicants] are his parents. Whilst the applicant son did not put forward his own claims for protection, relying on the country information before it, the Tribunal finds that he too will be imputed with an anti-regime political opinion if he were to return to Myanmar as a failed asylum seeker, regardless of his history, profile, or any actual political opinion he might hold.
For the same reasons relating to his parents, the Tribunal finds that if the applicant son were to be removed to Myanmar, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant son are his ethnicity, imputed political opinion and his membership of the particular social group of failed asylum seekers in Myanmar. The Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar and that effective state protection against the harm he fears is not available to him. The Tribunal therefore finds that the applicant son has a well-founded fear of persecution in Myanmar. The Tribunal further finds that there is no presently existing right, however expressed, for the applicant son to enter and reside in any other country and that s 36(3) does not apply.
For the reasons given above the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy s 36(2)(a) of the Migration Act.
Shahyar Roushan
Senior Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 2243

21 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice