2014194 (Refugee)

2014194 (Refugee) [2023] AATA 2384 (26 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2014194
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Alison Murphy
DATE:26 April 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 26 April 2023 at 10:01am
CATCHWORDS
REFUGEE – protection visa – Afghanistan – ethnicity – Pashtun – Sunni Muslim – political opinion – threats due to work for a foreign NGO – pro-western and anti-Taliban – applicant has a well-founded fear of serious harm or death – effective state protection not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K, 5L, 5LA, 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 September 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 Afghanistan, applied for the visa on 1 August 2019. The delegate refused to grant the visa on the basis that he was not owed protection by Australia.
The applicant appeared before the Tribunal on 19 April 2023 to give evidence and present arguments. The Tribunal also heard evidence from a witness, [Mr A].
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). 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.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The applicant travelled to Australia on an apparently genuine Afghan passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Afghanistan and he has been accepted as such by the Department. The Tribunal finds he is an Afghan citizen and has assessed his claims against Afghanistan as his country of nationality and the receiving country.
The applicant’s personal background
There is no dispute about the applicant’s background or identity, with the delegate noting that his evidence as to his identity, religion and ethnicity was consistent with his identity documents.
The applicant is [age deleted] male born in [District 1], in the Kunduz province of Afghanistan, although his family relocated to Kabul when he was a child. His father ran businesses in Kunduz and later Kabul. The family is of Sunni faith and Pashtun ethnicity and the applicant has four brothers and two sisters.
The applicant finished high school in Kabul in [year deleted], obtaining certificates for completing [courses deleted]. Copies of his education documents are contained on the Departmental file. He commenced employment as a [Job title 1]at a[Company 1], later working as an [Job title 2]at a[Company 2].
The applicant married his wife, [name deleted], in 2017 and they have a [age deleted] year old son, [name deleted].
Between February 2016 and July 2019 the applicant was employed by the [Company 3]in its Kabul office, most recently as their [Job title 3]. In that role, the applicant supervised daily activities of [Company 3] Kabul office, arranged meetings [work related activities and duties deleted]. Copies of his employment contracts with the [Company 3] (the head office of which is based in [location deleted]) are contained on the Departmental file, along with his business card and a copy of an Employee Award Certificate issued to him in 2016 by the [Company 3]as well as a certificate of appreciation relating to his earlier employment with [Company 2].
The applicant arrived in Australia [in]July 2019 as the holder of a visitor visa granted to him for his attendance at a business conference in Australia in the context of his role at the [Company 3]. He lodged the application for the protection visa on 1 August 2019.
As at the time of the Tribunal hearing, only the applicant’s eldest sister remains in Afghanistan, where she is married with her own family. His other sister migrated to Australia many years ago on a partner visa. The eldest of his four brothers, [Brother 1], was an [Job title deleted] for [a foreign government]and was granted residency in that country in about 2014.
The applicant left Afghanistan for Australia in 2019, relocating his pregnant wife to [Country 1], where their son, [name deleted], was born on [DOB deleted]. The applicant has provided the Department and the Tribunal with copies of [Country 1] visas granted to his wife and son, the most recent of which expired in November 2021. His wife’s mother has since moved to [Country 1] to live with his wife and son. His wife used to travel back to Afghanistan to renew her visa before returning to [Country 1], [information deleted].
After the Taliban takeover in 2021, the applicant’s parents and three brothers left Afghanistan for [Country 1]. His eldest brother sponsored his parents to the [Country 2] where they now live and [Country 2] visa applications for the youngest two brothers are currently in process. A few days before the Tribunal hearing the applicant’s fourth brother was granted a humanitarian visa to enter Australia along with his family.
CLAIMS FOR PROTECTION
The applicant’s claims for protection were made just a few weeks after his arrival in Australia. In essence, he claims that he fled Afghanistan after receiving threatening phone calls from the Taliban in Kabul because of his work with [Company 3]. He claims his father also received threatening phone calls from the Taliban relating to the applicant’s activities, leading the applicant and his wife to leave the family home in Kabul to stay with different relatives for short periods of time for a period of about 12 months before the applicant travelled to Australia. He claims that if he is returned to Afghanistan, he will be harmed or killed by the Taliban because of his work with a foreign NGO.
The delegate’s decision records that the applicant attended an interview with the Department in respect of his claims, describing his evidence at that interview as ‘detailed and consistent’ and that he provided ‘spontaneous detail about the time periods he received the calls, what happened during the calls, the time period his father started receiving calls, and how he suspects the Taliban obtained his and his father’s numbers.’ The delegate noted that the applicant’s claims were also consistent with country information indicating that the Taliban targets individuals perceived to be cooperating or associated with foreign governments with threatening phone calls ordering them to cease their activities.[1]
[1] Delegate’s decision dated 18 September 2020 at page 3
The delegate recorded that they accepted the applicant’s claims as presented, including that he is an Afghan citizen of Pashtun ethnicity from Kabul who adheres to the Sunni Islam religion. The delegate accepted that the applicant was employed by [Company 3] in Afghanistan from 2016 to July 2019, most recently as the [Job title 3], and that he and his father received multiple threatening calls from the Taliban asking him to cease his employment with the [Company 3] before he travelled to Australia in July 2019.
While the delegate accepted the applicant’s claims in full, she did not accept the applicant faced a future risk of harm in Afghanistan on the basis that the applicant no longer worked for the [Company 3] its website was no longer operational and its Facebook site was only occasionally updated indicating it had a limited profile and activities. The delegate considered that because the applicant had ceased his activities with the [Company 3], the Taliban would not further seek him out. In these circumstances, the delegate concluded that the applicant would not be of adverse interest to the Taliban if he returned to Afghanistan.
Assessment of claims
Consistent with the findings of the delegate, the Tribunal accepts the applicant’s claims in full. In particular, the Tribunal accepts that the applicant was employed by the [Company 3] between 2013 and 2016. In making that assessment the Tribunal notes the employment documents produced by the applicant as well as the oral evidence of [Mr A], the Chairperson and founding President of the [Company 3], at the hearing. [Mr A] confirmed the applicant’s employment with the [Company 3], giving evidence that the [Company 3] is a non-profit organisation governed by a private council.
[Mr A] gave evidence that he is from Afghanistan, although he has lived in Australia for many years. He travelled to Afghanistan in 2013 for the first time in many years to establish the [Company 3]’s Kabul office, which was [information deleted]. He hoped to recruit some trusted employees and considers himself blessed to have come across the applicant through some close family friends. During the applicant’s employment, the [Company3] was able to [information deleted]. Since the fall of Afghanistan to the Taliban in 2021, the organisation continues to operate but is not as active, and its former employees left Afghanistan for other countries. The Tribunal notes that [Mr A] is readily identifiable on [Company 3] Facebook page and is the Chairperson, and accepts his evidence to be true.
The Tribunal accepts that during the time of his employment, the applicant received repeated threatening phone calls from the Taliban, directing him to stop activities with the [Company 3] because of its promotion [information deleted]. The Tribunal accepts his evidence that his phone number was readily available on social media because of his role with the [Company 3]and that his father and family were well-known locally and regularly received visitors from their tribal area of Kunduz. Initially the applicant did not take those threats very seriously because the situation in Kabul was not as bad as it would quickly become, but that changed as the threats escalated to include his family and the security situation deterioriated.
The Tribunal accepts that when the applicant’s father started to receive similar threatening phone calls demanding he stop his son’s activities with the [Company 3], the applicant and his wife left the family home in Kabul and stayed with various relatives for approximately 12 months to avoid an escalating risk to themselves and their family. The Tribunal accepts that while the applicant and his family recognised the risks of his continuing employment with the [Company 3], the whole family was dependent on his income from that employment.
The applicant described an incident in which the vehicle he was driving was hit by another vehicle in what he suspects was a targeted attack. When the collision occurred, a lot of people approached the vehicles and the driver of the other vehicle ran off. While the applicant fears that collision may have been a deliberate attack on his life by the Taliban, he also acknowledges it may have been an unrelated occurrence.
The Tribunal accepts that the applicant did not tell his Australian employer [Mr A] about those threats while he was still in Afghanistan, as he was afraid he would lose his job and the ability to support his family. When an opportunity to travel to Australia to attend a conference arose, the applicant relocated his wife to [Country 1] and travelled to Australia with the intention of seeking protection. [Mr A] confirmed in his own evidence that the applicant had told him of his problems with the Taliban after his arrival in Afghanistan and that the threats received by the applicant were consistent with reports [Mr A] was hearing elsewhere about the conduct of the Taliban at the time. [Mr A] gave evidence that since the Taliban came to power in 2021, he had received hundreds of calls and pleas for help from Afghans in Australia who feared for the safety of their families in Afghanistan.
The Tribunal accepts that once the applicant left the family home in Kabul, his father continued to receive calls from the Taliban but they were less frequent. After the applicant travelled to Australia, those calls continued on an even less frequent basis, with the Taliban making clear to his father that they knew the applicant was in Australia. The applicant and his father believe the Taliban likely became aware of this through the family’s connection to their home province of Kunduz, where the Taliban was significantly more active than Kabul. The Tribunal accepts that the applicant’s father in particular was well known in Kunduz and that people from that province frequently visited the family in Kabul.
Assessment of future risk
The applicant claims that if he returns to Afghanistan, he will be tortured or killed by the Taliban because of his work with [Company 3] in Kabul, notwithstanding that his employment ended in 2019. [Mr A] gave evidence that he had no doubt the applicant would be subjected to harm by the Taliban in Afghanistan, because since the collapse of Afghanistan there is no room in that country for anyone who had any affiliation with foreign governments or organisations.
It is important to recognise that since the delegate’s decision in September 2020, there has been a dramatic change to the security and human rights situation across Afghanistan. In the wake of the withdrawal of international troops from Afghanistan in August 2021, the Taliban took control of an increasing number of districts and their capitals before advancing on Kabul, displacing hundreds of thousands of people in the conflict.[2] On 16 August 2021, the Taliban took control of the Presidential Palace in Kabul and the country’s former President, Ashraf Ghani, fled Afghanistan.[3] By 17 August 2021, the Taliban had installed itself as the new government of Afghanistan.[4]
[2] UNHCR Position on Returns to Afghanistan, August 2021 at Refworld
[3] BBC News, Ashraf Ghani: Afghanistan’s exiled president lands in UAE, 18 August 2021
[4] Afghan Analysts Network, Afghanistan has a new government: the country wonders what the new normal will look like, 17 August 2021 at >
The United Nations General Assembly (UNGA) reported that while the Taliban initially attempted to portray to the world that it would respect human rights and lead a more inclusive government, the reality on the ground did not reflect this. Rather, after seizing Kabul, the Taliban is reported to have erected checkpoints throughout the capital and shot people who crossed checkpoints without approval, conducting house-to-house searches for government personnel, weapons and property.[5]
[5] UNGA, 2 September 2021, p. 5
In August 2021, the UNHCR reported that the situation in Afghanistan remained fluid and uncertain, calling on all countries to allow civilians fleeing Afghanistan access to their territories and ensure respect of the principle of non-refoulement. It stated that in view of the volatility of the situation, it did not consider it appropriate to deny international protection to Afghans on the basis of internal flight or relocation alternatives and called on states to suspend the forcible return of Afghan nationals until the situation in the country had stabilised.[6]
[6] UNHCR Position on Returns to Afghanistan, August 2021 at Refworld
In December 2021, the Danish Immigration Service reported that a lack of empirical data made it very difficult to assess how the Taliban regards Afghans previously employed by international organisations or foreign states in Afghanistan, and how they have been treated. It noted, however, that all sources consulted assessed that the Taliban regards such persons as similar to Afghans employed by the former Afghan government. Some sources suggested that Afghans that worked for governments that were militarily engaged in Afghanistan would be at risk for that reason, but also that there is not a clear pattern regarding who is targeted, as many of the dynamics are both local and personal.[7]
[7] Danish Immigration Service, Afghanistan: Recent Events, December 2021
In January 2022, DFAT reported that the security situation in Afghanistan was volatile, but less dangerous for many Afghans due to the cessation of most armed conflict after the Taliban claimed victory. However, it also reported that the Taliban had targeted Afghans of all ethnicities working for, supporting, or associated with the former Afghan government and/or the international community, subjecting them to intimidation, threats, abduction and targeted killings. It noted that despite an amnesty declared by the Taliban at its first press conference since taking power in August 2021, former Afghan interpreters and other locally-engaged personnel who assisted US or other allied forces were reportedly subject to Taliban violence.[8]
[8] DFAT Country Information Report Afghanistan, 4 January 2022 at 3.25 – 3.28

In February 2022 the UNHCR renewed its call for all countries to allow civilians fleeing Afghanistan access to their territories and to guarantee the right to seek asylum and ensure respect for the principle of non-refoulement, noting that recent developments were giving rise to an increase in the need for international refugee protection for people fleeing Afghanistan. It noted a number of obstacles to the gathering of comprehensive information concerning the human rights situation, including: wide-ranging restrictions on the freedom of the media; the inability of the Afghanistan Independent Human Rights Commission to carry out its functions due to its premises being occupied by the Taliban; and other limits on human rights monitoring. It considered that the current uncertainties (including the Taliban’s disregard for the rule of law, the fear and uncertainties relating to authoritarian governance and the lack of information about the human rights situation) made it inappropriate to issue comprehensive guidance on the international protection needs of people fleeing Afghanistan. Rather, it urged states to suspend issuing protection decisions in all cases where it could not be readily determined that the person in question is a refugee within the meaning of the 1951 Refugees Convention.[9]
[9] UN High Commissioner for Refugees (UNHCR), UNHCR Guidance Note on the International Protection Needs of People Fleeing Afghanistan, February 2022
In April 2022, the UK Home Office listed persons associated with the former Afghan government or international community as a potentially vulnerable group.[10] In February 2023, the UNHCR reported that civilians continue to be gravely affected by the security, human rights and humanitarian crises in the country. It noted that many Afghans will have international protection needs, identifying one of those groups needing protection as Afghans associated with the former government or international community in Afghanistan, including employees of international organisations. In relation to effective state protection, the UNHCR reported that it does not consider the de facto authorities are willing or able to provide protection to Afghans at risk of persecution. Nor does it consider it appropriate to deny international protection to Afghans on the basis of an internal flight or relocation alternative.[11]
[10] UK Home Office, Country Policy and Information Note Afghanistan: Fear of the Taliban, April 2022
[11] UN High Commissioner for Refugees (UNHCR), UNHCR Guidance Note on the International Protection Needs of People Fleeing Afghanistan, February 2023
The European Union Agency for Asylum reports that in March 2022, two former interpreters for the UK army fled to Pakistan after receiving death threats from the Taliban threats, one reportedly jumping from a three-story building to escape a Taliban search operation. In April 2022, a group of former Afghan interpreters for the Canadian army reported that their relatives were moving from safe house to safe house to escape Taliban reprisals. Another former interpreter now resident in Australia reported that his family’s situation had grown increasingly precarious because the people he used to pay to hide his family were now scared of the Taliban’s reprisals.[12]
[12] European Union Agency for Asylum, Afghanistan: Targeting of Individuals Country of Origin Report, August 2022
In June 2022 the Danish Immigration Centre reported that while a large number of Afghans affiliated with the former government were evacuated abroad, many remain in the country and have been subjected to different forms of violations, including killings, arrests, house searches etc. DIS also notes that the Taliban generally has a well-developed intelligence network throughout the country, especially in the rural parts of Afghanistan, where they have had a strong presence as an insurgency.[13]
[13] Danish Immigration Service Afghanistan: Taliban’s Impact on the Population June 2022 at K:\Kontoret for Landedokumentation\COI-team\FFM\FFM 2022\Afghanistan\Endelig rapport sendt til dep\Forside_Afghanistan_Rapport (europa.eu)
In February 2023 the Special Rapporteur on the situation of human rights in Afghanistan reported that the humanitarian crisis had worsened since his initial report to the Human Rights Council a year earlier. While that report does not make specific mention of Afghans associated with the former government or international community, the Special Rapporteur reported that press freedoms had deteriorated, with an estimated 40% of media organisations ceasing operation and 60% of journalists losing their jobs since August 2021. The report noted serious challenges to the rule of law in Afghanistan and credible reports regarding extrajudicial executions and torture, the heavy suppression of communities and an information blackout. The Special Rapporteur expressed concern about the climate of impunity and the continued failure to hold officials and commanders accountable for serious violations of international human rights and humanitarian law, a trend that preceded the Taliban regime and that has continued. He referred to numerous reports of extrajudicial killings of former members of the Afghan National Defence and Security Forces, contrary to the declared amnesty, which had not been properly investigated.[14]
[14] Report of the Special Rapporteur on the Situation of Human Rights in Afghanistan, 9 February 2023
In light of the available country information cited above, together with the applicant’s personal experiences with the Taliban in Kabul in 2016-2019, the Tribunal accepts that if returned to his home area of Kabul, the applicant would be of continuing adverse interest to the Taliban because of his past employment with the [Company 3]. DFAT reports that traditional extended family and tribal community structures are the main protection in Afghan society and Afghans rely on these networks for safety, shelter and economic survival.[15] However these same networks enabled the Taliban to obtain information about the applicant in the past and the Tribunal accepts that seeking support from his extended family and networks in Kunduz or Kabul may again enable the applicant to be located by the Taliban.
[15] DFAT Country Information Report Afghanistan, 27 June 2019 at 5.31
For these reasons the Tribunal finds that the applicant faces a real chance of serious harm from the Taliban if he returns to his home area of Kabul, now or in the reasonably foreseeable future. Therefore the Tribunal accepts that the applicant has a well-founded fear of persecution for the essential and significant reason of an anti-Taliban political opinion imputed to him (and which he does in fact hold) as a consequence of his employment by the [Company 3] in Kabul.
As the Taliban now forms the de facto government in Afghanistan, and given the continued climate of impunity and failure to hold Taliban officials and commanders accountable for serious violations of international human rights and humanitarian law described by the Special Rapporteur in February 2023, the Tribunal finds that effective state protection is not available to the applicant. Country information indicates that the whole of Afghanistan is now under the control of the de facto Taliban government who are not willing or able to provide protection to Afghans at risk of persecution and the Tribunal finds that the real chance of persecution relates to all areas of Afghanistan.
For these reasons the Tribunal is satisfied that the applicant has a well-founded fear of persecution in all areas of Afghanistan for reasons of his political opinion and he meets the criteria set out in s 5J(1). Effective state protection is not available to him and he meets the criteria set out in s 5J(2). He cannot be required to alter or conceal his political beliefs that are pro-western and anti-Taliban and s 5J(3) does not apply to him. The persecution that he fears involves systematic and discriminatory conduct amounting to serious harm for the essential and significant reason of his political opinion and he meets the criteria set out in s 5J(4) and s 5J(5). Section 5J(6) does not apply to the applicant. Therefore the applicant meets the definition of a refugee and is a person to whom Australia has protection obligations under s 36(2)(a).
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.
Alison Murphy
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 2384

26 April 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Remedies

Statutory Construction