2013497 (Refugee)

2013497 (Refugee) [2023] AATA 4023 (24 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2013497
COUNTRY OF REFERENCE:                   Burma (Myanmar)
MEMBER:Paul Windsor
DATE:24 August 2023
PLACE OF DECISION:  Melbourne
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 24 August 2023 at 11:39 am
CATCHWORDS
REFUGEE – protection visa – Burma (Myanmar) – hearing not required – changed political circumstances in Burma since delegate’s decision – particular social group – failed asylum seeker returning to Burma from Australia – imputed antiregime political opinions – Christian religion – real chance of persecution if returned – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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 24 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 6 February 2020.
In his Protection visa application, the applicant stated he was born on [date] in [Kachin] state, Myanmar. He indicated he is ethnic Burmese and a Christian (Anglican). He stated he has never married. The applicant indicated he departed Myanmar legally [in] June 2018 on a Myanmar passport issued [in] 2015, and arrived in Australia [in] June 2018, entering on a Student visa.[1]
[1] See the Departmental file.
In his application, the applicant stated that he cannot go back to his country because there is a war there and it is not safe anywhere in the country.[2]
[2] Ibid.
The delegate found that the applicant’s claims related to generalised violence in Myanmar. Despite this, she found that country information indicated that Christians in Kachin state were still subject to religious persecution despite a ceasefire between the Kachin Independence Army (KIA) and the military from 1994 to 2011. The delegate noted, however, that the applicant had not provided claims indicating that he personally had faced any particular problems due to his religion (the applicant failed to attend a scheduled interview with the delegate). In relation to the complementary protection criterion, the delegate found that, as the applicant had not indicated how conflict in Kachin state impacted on him personally, while accepting that he might be ‘impacted to a degree due to the conflict’ she was not satisfied that the conflict would amount to generalised violence that would lead to people returning to Kachin state facing a real risk of significant harm as defined in s 36(2A) of the Act.
The applicant sought merits review of this decision on 1 September 2020. He provided the Tribunal with a copy of the delegate’s decision record.[3]
[3] See the Tribunal file.
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 his case. This is because the Tribunal considers that it can decide the review in the applicant’s favour based on the material before it.
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 (the Department), 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant did not provide any further information or evidence in relation to his claims in support of the review application.
Assessment
Identity
On the basis of the copy of his passport submitted to the Department,[4] the Tribunal accepts that the applicant is a citizen of Burma (Myanmar) and that his identity is as claimed. The Tribunal accepts that Burma (Myanmar) is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[4] See the Departmental file.
The issue in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Burma (Myanmar), there is a real risk he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Assessment of claims
The applicant is a [age] year old man from Kachin state, which is located in northern Myanmar. In his application he indicated he lived in Kachin until he came to Australia in June 2018.
The Tribunal notes that the delegate’s decision was made on 24 August 2020, prior to the February 2021 coup in Myanmar. DFAT issued its most recent Country Information Report on Myanmar on 11 November 2022.[5] The Tribunal finds that the more recent country information, set out below, indicates that the situation in Myanmar has changed dramatically since the time of the delegate’s decision. The current DFAT Report contains the following information relevant to the present application.
[5] DFAT Country Information Report, Myanmar, 11 November 2022.
In relation to political opinion (actual or implied), the DFAT report states the following:
3.44 As a result of the February 2021 coup, Myanmar is a military dictatorship, controlled by the State Administration Council (SAC) headed by Commander in Chief Senior General Min Aung Hlaing. The SAC has promised to hold elections in 2023 (see Political System). The 2008 Constitution, technically still in effect as of October 2022, describes the political system of Myanmar as a ‘genuine, disciplined multi-party democratic system’, but since the coup all state power is concentrated in the hands of the SAC. Under Sections 404-406 of the Constitution, political parties theoretically have the right to form, organise freely and participate and compete in elections. Likewise, freedom of expression, association and peaceful assembly are theoretically guaranteed under Section 354 ‘if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality’. In practice, these rights and freedoms were not always respected before the military takeover and have been routinely violated since.
…
3.47 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 anti-regime 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). Sources in Yangon told DFAT they had experienced random police searches of their homes and vehicles, some on multiple occasions. Police also make random checks for anti-regime content on individuals’ mobile phones, leading some people to carry a second ‘politically clean’ phone as a precaution. 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.
…
3.51 DFAT assesses 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.
In relation to the impact of armed conflict in Kachin state, the DFAT report states:
2.39 Violence in Kachin State rose steeply following the coup, and fighting between the military and the KIA extended into northern Shan State, Sagaing Region and Mandalay Region throughout 2020-21. This followed the release of images of security forces killing unarmed protesters in Myintkyina, the Kachin State capital, in March 2021. The Myanmar Institute for Peace and Security (MIPS) recorded 312 clashes between the KIA and the military in the first six months of 2021 and estimates 12,000 civilians were displaced in Kachin State between March and June 2021, adding to approximately 100,000 living in protracted displacement in Kachin since 2011. Elements of the KIA have provided training and arms to People’s Defence Forces (DPFs). For instance, the KIA has supported PDFs in northern Sagaing Region, and a military raid in Mandalay in June 2021 captured eight PDF fighters and killed four others, two of whom were subsequently revealed to be KIA officers. In October 2022, Myanmar military airstrikes against an outdoor concert in Kachin State killed over an estimated 60 people, most of them civilians.
In relation to race, the DFAT report states:
3.1 Ethnicity in Myanmar is a determinant of citizenship and basic rights, a factor in political and armed conflict, and a source of discrimination, particularly for the Rohingya. While section 347 of Myanmar’s 2008 Constitution theoretically guarantees “any person to enjoy equal rights” and protections before the law, many people are denied these rights in law and practice. Myanmar officially recognises 135 ethnic groups, which it categorises into eight ‘Major National Ethnic Races’: Kachin, Kayin, Kayah, Chin, Mon, Bamar, Rakhine and Shan (notably excluding Rohingya) These divisions are often arbitrary and reflect colonial era understandings of racial classification rather than the reality of ethnic diversity in Myanmar. The CIA World Factbook describes the population as 68 per cent Burman (Bamar), 9 per cent Shan, 7 per cent Karen, 4 per cent Rakhine, 3 per cent Chinese, 2 per cent Indian, 2 per cent Mon, and 5 per cent Other. Identity in Myanmar is complex, involving elements of ethnicity, religion, language and geographic location. Different members of the same family may identify as different races, and people’s officially recognised race or religion may be different to how they self-identify.
3.2 The Burma Citizenship Act of 1982 establishes a hierarchy of first and second-class citizens on the basis of ethnicity, a situation the International Commission of Jurists says ‘enables widespread discrimination throughout the country and undermines the rule of law’. Full citizenship rights are only granted to people who can trace their family residency to prior to 1823, most of whom belong to one of the eight major ethnic groups listed at 3.1. ‘Associate’ citizenship is granted to children of ‘mixed’ marriages where only one parent was a full citizen, as well as to individuals who had lived in Myanmar for five consecutive years (or eight out of 10 years) prior to independence. A third category, naturalised citizens, includes the offspring of people who migrated to Burma during the colonial period. The International Commission of Jurists notes the ‘key distinction between these two categories [associate and naturalised citizens] is whether or not the applicant, or their parent/s, had applied for citizenship under the 1948 Union Citizenship Act prior to the enactment of the 1982 Law’. Groups that are said to fall outside these categories, such as Rohingya or many people of Chinese or Indian descent, are excluded from citizenship altogether.
3.3 Racial discrimination in Myanmar is widespread and institutionalised, in a way that privileges Bamar Buddhists over other groups, especially over people with darker skin and those who do not speak fluent Burmese. People belonging to or perceived as belonging to so-called ‘mixed races’ (a term used to refer those of South Asian or Chinese heritage) are forced to queue separately when accessing government services and sometimes report racial abuse and discrimination from officials, including the use of ethnic slurs and refusals or delays when accessing public services. People without full citizenship are excluded from certain professions, including medicine and law, and informal ceilings apply to all non-Bamar ethnicities in government and military jobs, preventing them from reaching higher ranks. School curricula sometimes include racist content, such as poetry encouraging the hatred of people with ‘mixed blood’. According to the International Commission of Jurists, more than a quarter of the Myanmar residents enumerated in the 2014 census lacked a legal identity, denying them basic rights and access to government services. Ethnic minorities are more likely than the Bamar majority to be undocumented. Many ethnic minorities experience violence and displacement due to ongoing conflict in their home states and regions (see Security Situation).
3.4 DFAT assesses that members of non-Bamar (minority) ethnic groups in Myanmar face a moderate risk of societal and official discrimination on the basis of their ethnicity, although for some groups (such as Rohingya) the risk is much higher. Minority ethnic groups including the Chin, Karen, Karenni and others suffer frequent violence at the hands of the state, largely on the basis of actual or perceived association with armed resistance movements (see Security Situation, Political Opinion, Actual or Imputed).
In relation to the Christian religion, the DFAT report states:
3.33 Christians make up approximately 6 per cent of Myanmar’s population. They mostly belong to the Baptist, Catholic and Anglican denominations, along with several smaller Protestant groups. Most members of the Chin, Kachin and Naga ethnic groups are Christian, as are many Karen and Karenni.
3.34 The ability of Christians to freely practise their religion in Myanmar is impacted by state policies, community attitudes and ongoing conflict in states with large Christian populations, including Chin, Kayah and Kachin States. Since 2020, authorities have ordered churches to close due to COVID-19 and the ongoing security situation, although some reopened in 2022. While similar restrictions have been placed on all religions, non-Buddhist groups including Christians claim they are unevenly enforced. Christians in Wa State have faced persecution by the UWSA (see Security Situation), which in 2018 launched a campaign to close churches and detained Christian pastors and worshippers, claiming it was acting ‘to prevent religious extremism’. In late 2019, some churches in Wa State were allowed to reopen. Like other minorities, Christians are underrepresented in the public sector and reportedly barred from holding senior positions in the security forces or government ministries.
3.35 Local sources described attempts to convert Christians to Buddhism, for instance ‘by handing out food’, and there are reports of officials intentionally misrecording the religion of Christians as Buddhists on their identity documents. DFAT is aware of claims Christians are sometimes forcibly converted to Buddhism in Myanmar. In 2019, Morning Star News, a Christian NGO, reported that five local officials in Ann Township, Rakhine State, kidnapped two ethnic Chin Christians and threatened expulsion from their village if they did not convert to Buddhism.
3.36 There are reports of security forces deliberately shelling, looting, vandalising and burning down Christian churches during military operations since the coup, as well as commandeering them to use as military bases. Christian representatives told DFAT soldiers used churches in Chin and Kayah States as shields because they knew local Christians would not attack them. In May 2021, four people were killed and at least eight wounded when a Catholic church in Loikaw, Kayah State, was shelled by soldiers who reportedly knew civilians were sheltering inside. In April 2022, soldiers occupied the Sacred Heart Cathedral in Mandalay, taking an archbishop and dozens of worshippers hostage while demanding to know where ‘gold and money and weapons’ were hidden. Human rights groups have recorded similar incidents throughout the country according to an October 2021 Al Jazeera report.
3.37 Since the 2021 coup, security forces have targeted Christian church leaders for arbitrary detention, inhumane treatment, kidnappings and extrajudicial killings. At least five Chin pastors have been killed since the 2021 coup. In March 2021, four ministers and seven worshippers were arrested at the Kachin Baptist Convention in Lashio, and allegedly beaten while in custody. In September 2021, Cung Biak Hum, a 31-year-old Baptist pastor, was shot while attempting to put out a fire in Thantlang, Chin State. After killing him, soldiers reportedly cut off the pastor’s finger and stole his wedding ring. Church leaders have reportedly been forced to conceal their identities when questioned by security forces, because ‘if they knew I was a pastor they would arrest me’.
3.38 DFAT assesses that Christians in Myanmar face a moderate risk of official discrimination, a low risk of societal discrimination and a moderate risk of violence on the basis of their religion. Church leaders face a high risk of violence, especially in conflict zones.

On conditions for returnees, DFAT states:
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.
The Tribunal also has had regard to the Report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) on Situation of Human Rights in Myanmar since 1 February 2022 (issued on 2 March 2023).[6] The OHCHR report, which describes the situation as ‘catastrophic’, 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.
[6] The Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Myanmar since 1 February 2022 >
The applicant has indicated that he is a member of the majority Burmese (Burman or Bamar) ethnic group but is a member of the minority Christian religious group. The applicant has not made specific claims for protection but has indicated that he is fearful of returning to Myanmar because of the conflict there. Given the country information cited above, the Tribunal finds that, as a member of the minority Christian religious group, the applicant faces a moderate risk of official discrimination and a moderate risk of violence on the basis of his religion should he be returned to Myanmar.
Furthermore, as indicated above, DFAT states that there is a high level of scrutiny of people arriving and departing Myanmar; there are severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries; and DFAT assesses that 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. Given this, the Tribunal considers that the current country information in relation to the treatment of returnees to Myanmar, along with the applicant’s status as a member of the minority Christian community, is sufficient to support a finding that the applicant would face a real chance of suffering persecution involving serious harm should he be returned to Myanmar now or in the reasonably foreseeable future.
The Tribunal considers it is clear that if the applicant returned to Myanmar in the reasonably foreseeable future he would not be doing so voluntarily. If he was not successful in being granted Protection visas in Australia, he would be a failed asylum seeker returning from Australia to Myanmar and it would be apparent to the Myanmar authorities that he was returning in this capacity.
The Tribunal considers that 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. This 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.
As the applicant has been in Australia for over five years since departing Myanmar [in] June 2018, having come to Australia to study, the Tribunal considers it is likely that he would be regarded by the Myanmar authorities as having links to a Western country. The Tribunal also considers that in the current circumstances it is reasonably likely that, as a failed asylum seeker, the Myanmar authorities would assume the applicant has criticised the current regime in Myanmar as part of his protection claims even though the authorities would not be aware of the specific details of his claims, and he would be imputed with anti-regime political opinions. In this regard the Tribunal notes DFAT’s comments above that multiple sources told it that 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.
The DFAT Report indicates that 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 the relevant country information and finds that if the applicant returned to Myanmar in the foreseeable future, he would face a real chance of serious harm for this reason.
The Tribunal is satisfied that the applicant fears being persecuted if he returns to Myanmar, and there is a real chance that he would be persecuted if he returned to Myanmar in the reasonably foreseeable future for the reasons of his membership of a particular social group comprising failed asylum seekers returning from Australia to Myanmar, his imputed anti-regime political opinions and his Christian religion.
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 reasons of his membership of the particular social group comprising failed asylum seekers returning from Australia to Myanmar, an imputed anti-regime political opinion and his Christian religion, that it involves serious harm to the applicant and 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 his 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 his behaviour so as to avoid a real chance of persecution in Myanmar, including because it would not be possible for him to conceal the fact that he is a failed returned asylum seeker from Australia as this is an innate or immutable characteristic he holds. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reasons of his membership of the particular social group comprising failed asylum seekers returning from Australia to Myanmar, his imputed anti-regime political opinion and his Christian religion.
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself of the protection of that country. Accordingly, the Tribunal finds that the applicant 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 he is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal finds that the applicant does not have the right to enter and reside in any safe third country for the purposes of s 36(3) of the Act and therefore finds that this section does not apply in his case.
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.
Paul Windsor
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 4023

24 August 2023

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