2013202 (Refugee)

2013202 (Refugee) [2023] AATA 1446 (16 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013202
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Rachel Da Costa
DATE:16 March 2023
PLACE OF DECISION:  Sydney
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 16 March 2023 at 4:03pm
CATCHWORDS
REFUGEE – protection visa – Myanmar – child of Myanmar citizen mother and father from another country – naturalised citizen – limited education and work opportunities – estrangement from family after refusing arranged marriage – travel to other countries and returns – country information – delegate’s decision made before coup and current DFAT and UNCHR reports – member of particular social group and imputed political opinion – returned failed asylum seeker – high risk of sexual harassment, detention and violence – no effective protection measures or reasonable steps to conceal innate characteristic – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 5L, 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 14 August 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 Burma (Myanmar), applied for the visa on 3 August 2018.
On 14 August 2020, 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.
On 25 August 2020, the applicant lodged an application for review of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal with her application for review.
For the reasons set out below, the Tribunal has decided that it is not necessary to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. This is because the Tribunal considers that it can decide the review in the applicant’s favour based on the material before it.
CLAIMS AND EVIDENCE
Background
In her protection visa application form, the applicant provided the following information. She was born in Mandalay, Burma (Myanmar) in [Year]. She holds a Burma (Myanmar) passport issued [in] 2015 with an expiry date of [2020]. She holds a Myanmar National Identity card. She is a Myanmar citizen and so are her parents. She does not hold any other citizenship and does not have the right to enter or reside in another country.
She is engaged to be married. From [Birth], she lived in Mandalay, Myanmar. From August 2016 to August 2017, she lived in [Country 1]. From August 2017 to September 2017, she lived in [Country 2]. From September 2017 to November 2017, she lived in Mandalay, Myanmar. From November 2017 to January 2018, she lived in [Country 3]. From January 2018 to February 2018, she lived in [Country 2]. In February 2018, she visited Australia. She then returned to [Country 4] briefly and then to [Country 2] in April 2018. [In] April 2018, she returned to Yangon, Myanmar. [In] May 2018, she arrived in Australia and has remained here since. She departed Myanmar legally using her passport and arrived in Australia as the holder of a Visitor visa.
She speaks, reads and writes Burmese, [Country 1 Language] and English. Her religion is Buddhist. In [Country 1], she studied [Country 1] language. Her visits to [Country 2] were to visit a friend and her visit to [Country 3] was for a holiday. She studied English in Myanmar and completed an [English] Course at [University], Myanmar, in October 2017. She also completed High School in Myanmar.
Evidence before the Department
The applicant made the following claims in her protection visa application form and in an additional written statement provided on 22 August 2018.
·     She had difficulty obtaining citizenship in Myanmar. Her mother was born in Myanmar and her father came from [Country 5] in [Year]. She was granted Permanent Residency. She does not feel secure in her citizenship because there was corruption involved in obtaining her documents. She does not have the same rights as other people.
·     Due to her citizenship difficulties, she was unable to get a better life, study and job opportunities in Myanmar. The unstable political system and poverty causes difficulty in their lives. Her family is poor and her parents are sick.
·     Her family arranged for her to marry an unknown person. Her family beat and tortured her to marry this man.
·     She likes a man from a different country who is 15 years older than her. She fears that if she returns to Myanmar, her family will force her to marry a local Myanmar person and this will cause her emotional distress.
·     She feels unsafe as a young woman in Myanmar and has experienced harassment while on her way home in October 2017.
·     Human rights are oppressed in Myanmar.
The applicant provided a number of documents with her protection visa application relating to her travel history and identity. The identity documents included her Myanmar national identity card (green), birth certificate, family register and educational certificates.
Interview with the delegate
On 5 June 2020, the applicant attended an interview with the Department in relation to her protection visa application. In the interview, she provided further information in relation to her claims. This information included:
·     She does not have support from her family due to her refusal to participate in an arranged marriage. She is engaged to a man who lives in [Country 2].
·     Her father was born in [Country 5] and is considered a foreign temporary resident. Her mother has full citizenship and holds a pink Citizenship Scrutiny Card (SCS).
·     The applicant and her sisters have green naturalised CSCs. She is worried that her card can be taken off her if she does not continue to pay bribes to immigration officials.
·     She obtained her Myanmar passport in 2015. She paid a bribe as part of this process. She had access to healthcare and education in Myanmar.
The delegate’s decision
On 14 August 2020, the delegate found that the applicant was a naturalised citizen of Myanmar, holding a green CSC, and she was of [Country 5] ethnicity and [Specified] religion. The delegate found that the applicant’s citizenship documents are genuine and that she would not have her citizenship revoked by the Myanmar authorities. The delegate found that the applicant’s mother was born in Myanmar and is a full citizen with a pink CSC. The delegate had doubts about the applicant’s evidence relating to her father’s citizenship status, however this ultimately did not affect the delegate’s findings in relation to the applicant’s status. The delegate accepted that the applicant faced some discrimination in Myanmar due to her [Country 5] ethnicity and [Specified] religion. The delegate did not accept the applicant’s claims that she would be harmed by her parents and/or sister and forced into an arranged marriage in Myanmar. The delegate did not accept that the applicant would face serious harm as a woman in Myanmar. The delegate found that the applicant is not a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The applicant provided some additional documents to the Tribunal in support of her application for a protection visa:
·     country information about the citizenship process in Myanmar, including a 2019 report from the International Commission of Jurists entitled Citizenship and Human Rights in Myanmar: Why Law Reform is Urgent and Possible;
·     further copies of identity documents provided previously to the Department;
·     a written statement dated 24 August 2020 and an undated written statement reiterating her claims;
There are also two emails on file sent to the Tribunal on 19 February 2022 and 25 February 2022 with a letter attached in which the sender alleges he was in a relationship with the applicant but she misled him about their relationship in order to obtain a protection visa. The Tribunal has considered this information but in the context of its analysis and findings below, it gives the information no weight.
Nationality and identity
The applicant claims to be a citizen of Myanmar and provided to the Department a copy of her Myanmar passport issued [in] 2015, her green Myanmar CSC issued on [in] 2014 and a translation of her Myanmar birth certificate issued on [Date]. Citizenship Scrutiny Cards were introduced under the Burma Citizenship Act of 1982 and there are three categories of citizenship.[1] A pink card denotes full citizenship, a green card denotes naturalised citizenship and a blue card denotes associate citizenship.[2]
[1] DFAT Country Information Report Myanmar 11 November 2022 (version 2) (DFAT Report), 5.29.
[2] (accessed 16 March 2023)
The delegate was satisfied that the applicant was using her own identity and documents. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Myanmar. The Tribunal finds Myanmar is her receiving country for the purpose of assessing her claims for protection. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
By way of context, the current DFAT Report from November 2022 sets out the recent political background in Myanmar:
2.4 In November 2015, Myanmar held credible national elections for the first time in 55 years. The NLD won almost 80 per cent of the available seats, assuming power in 2016. While Aung San Suu Kyi could not become president due to a constitutional clause drafted to exclude her (see Political System), she was appointed State Counsellor and Foreign Minister. The NLD government was popular, but it was slow to make reforms and progress the national peace process, and its international reputation was tarnished by its failure to prevent mass atrocities against the Rohingya in Rakhine State, which caused an estimated 700,000 people to flee the country in 2016-2018 (see Rohingya).
2.5 In government, the NLD hoped to reduce the influence of the military and pave the way for Aung San Suu Kyi to become President. But after the NLD won the November 2020 election in a landslide, the military rejected the result and seized power under the leadership of Senior General Min Aung Hlaing on 1 February 2021. 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.
…
2.21 The day after the coup, the junta announced Myanmar would henceforth be under the control of an executive governing body known as the State Administration Council (SAC). The SAC consists of nine military officers and ten civilians, the latter drawn from a range of ethnic groups and rival parties to the NLD. On 1 August 2021, Min Aung Hlaing was announced as Prime Minister of a so-called ‘caretaker government’, which would rule the country under a state of emergency until February 2023, after which a ‘free and fair multiparty general election’ would take place. Observers do not consider these commitments credible.
The most recent Report from the United Nations High Commissioner for Human Rights dated 2 March 2023 on the Situation of human rights in Myanmar since 1 February 2022[3] describes the situation as “catastrophic”.[4] The report states:
69. The overall human rights situation in Myanmar during the second year since the military coup has worsened, with multiple serious violations occurring daily across the country. 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.
70. 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. Violence directed at civilians violates basic principles of human rights and, where applicable, international humanitarian law. While reports of abuses have increased, they are not grounds upon which to justify the unlawful actions of the military perpetrated in the name of “anti-terrorism”, nor are they comparable in scale and breadth to violations committed by the military.
[3] (UNHCHR Report) (accessed 16 March 2023)
[4] Paragraph 11.
The Tribunal is assessing the applicant’s claims for protection on the basis of the situation in Myanmar since the 2021 coup. The Tribunal notes that the delegate’s decision was made prior to this event and prior to the current DFAT Report and UNHCHR Report being published.
The Tribunal accepts the evidence provided by the applicant about her travel history. This shows she has spent an extended period of time in [Country 1], as well as visiting [Country 2], [Country 3] and Australia as a visitor before arriving in Australia in 2018 and applying for a protection visa. The Tribunal notes that the applicant’s Myanmar passport expired [in] 2020 and there is no evidence to indicate that she has attempted to renew it.
In relation to returned failed asylum seekers from Australia to Myanmar, the DFAT Report states at 5.25:
DFAT assesses that, 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 (see Political Opinion), 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.
In the Tribunal’s view, if the applicant returned to Myanmar in the reasonably foreseeable future she would not be doing so voluntarily. Self-evidently, if she was not successful in being granted a protection visa in Australia, she would be a failed asylum seeker returning from Australia to Myanmar and it would be apparent to the Myanmar authorities that she was returning in this capacity. The applicant’s travel history indicates that since 2016, she has spent an extended period of time in [Country 1], we well as visiting [Country 3] and Australia. The applicant returned to Myanmar between these trips so it is reasonable to assume that this travel history would be known to the Myanmar authorities. Evidence before the Tribunal shows that the applicant departed Myanmar in May 2018 and flew to Australia where she has remained ever since.
The Tribunal has considered whether being a failed asylum seeker returning from Australia to Myanmar makes the applicant a member of a particular social group.
When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. The Tribunal finds that being a failed asylum seeker returning from Australia to Myanmar is a particular social group as defined by s 5L as the characteristic of being a someone who has applied unsuccessfully for a protection visa in Australia is shared by each member of the group and the applicant shares this characteristic. Further, the characteristic is an innate or immutable characteristic, and the characteristic distinguishes the group from society. The Tribunal is satisfied that the characteristic is not a fear of persecution.

The Tribunal has considered whether the applicant would face a real chance of serious harm if she returned to Myanmar in the reasonably foreseeable future due to being a failed asylum seeker returning from Australia to Myanmar.
The Tribunal considers that with the applicant’s travel history, it is likely that she would be regarded by the Myanmar authorities as having links to Western countries. The Tribunal also considers that in the current circumstances it reasonably likely that as a failed asylum seeker, the Myanmar authorities would assume that the applicant has criticised the current regime in Myanmar as part of her protection claims even though the authorities would not be aware of the specific details of her claims, and they would impute an anti-regime political opinion to her. The DFAT Report indicates that in this situation, 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. The Tribunal accepts this country information and finds that if the applicant returned to Myanmar in the foreseeable future, she would face a real chance of serious harm for this reason.
In relation to the applicant’s citizenship and ethnicity, The Tribunal accepts the Myanmar identity documents provided by the applicant as genuine and finds that she is a naturalised citizen of Myanmar. The applicant’s birth certificate shows her mother’s race as “[Country 5]” and her father’s race as “Bamar + [Country 5]”. The applicant’s green CSC shows her race as “[Country 5]”. The Tribunal accepts this. The DFAT Report assesses that people of [Country 5] descent with citizenship face a moderate risk of official discrimination.[5]
[5] DFAT Report [Reference].
In relation to the applicant’s gender, the DFAT Report notes that there are few legal protections for women in Myanmar and those that exist are ineffective.[6] It states that there are high rates of domestic and gender-based violence, low rates of economic participation, exclusion from decision-making and a lack of state protection, and all of these issues have been exacerbated by the impacts of the 2021 coup.[7] DFAT assesses that women in Myanmar are at moderate risk of societal discrimination and moderate risk of official discrimination in the form of inadequate state protection from gender-based violence. Female political prisoners are at high risk of sexual harassment and moderate risk of sexual violence and rape. Women throughout Myanmar face a moderate risk of gender-based violence, particularly domestic violence.[8] The DFAT Report states that since the coup, women who are detained by the security forces for opposing the regime are frequently subjected to sexualised threats and sexual harassment, and in some cases to sexual assault, rape and torture.[9]
[6] DFAT Report 3.75.
[7] DFAT Report 3.73.
[8] DFAT Report 3.83.
[9] DFAT Report 3.81.
In light of this country information referred to above, the Tribunal also considers that with the applicant’s profile as a person of [Country 5] descent and as a woman who may be perceived by the authorities as holding or having expressed views in opposition to the current regime, the risk of serious harm to the applicant, particularly of a sexual nature, if she returns to Myanmar in the foreseeable future is further increased.
Based on the Tribunal’s findings above and the country information referred to, the Tribunal is satisfied that the applicant fears being persecuted for reason of her membership of a particular social group, namely, failed asylum seeker returning from Australia to Myanmar, and there is a real chance that she would be persecuted for this reason if she returned to Myanmar in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution relates to all areas of Myanmar.
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of her membership of a particular social group, it involves serious harm to her and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant and a threat to her life or liberty.
Given it is the Myanmar State that is the agent of persecution in this case, the Tribunal is satisfied that protection against persecution would not be provided to the applicant by the Myanmar State and that the Myanmar State is not willing and able to offer such protection. On this basis, the Tribunal finds that effective protection measures are not available to the applicant in Myanmar.
The Tribunal is satisfied that the applicant cannot take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in Myanmar because it would not be possible for her to conceal the fact that she is a failed returned asylum seeker from Australia as this is an innate or immutable characteristic she holds. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of her membership of a particular social group in Myanmar.
The Tribunal finds that the applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, she is unable or unwilling to avail herself of the protection of that country. Therefore, the Tribunal finds that she meets the definition of refugee in s 5(H)1 of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).
In light of the Tribunal’s findings above, it is not necessary for the Tribunal to consider the applicant’s other substantive claims in her protection visa application.
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Rachel Da Costa
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 1446

16 March 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies