2015926 (Refugee) - [2025] ARTA 1310

2015926 (Refugee) [2025] ARTA 1310 (18 March 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2015926

Tribunal:Senior Member G. Cullen
Date:18 March 2025

Place:Sydney
Decision:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 March 2025 at 2:50pm
CATCHWORDS
REFUGEE – protection visa – Portugal – political opinion – opposition to the government – fight with gypsies – drug addiction – police assault – threats of killing – access to medical services – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
CHB16 v MIBP [2019] FCA 1089 (Reeves J, 12 July 2019)
CSV15 v MIBP [2018] (Collier J, 21 May 2018) FCA 699
EZC18 v MHA [2019] FCA 2143 (Besanko J, 19 December 2019)
SZDCD v MIBP [2019] FCA 326
WAKZ v MIMIA [2005] FCA 1065 (French J, 2 August 2005)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF 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 September 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, nationals of Portugal, arrived in Australia on Visitor visas [in] October 2017. They applied for protection visas on 16 December 2017.
A delegate of the Minister on 24 September 2020 refused to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 27 October 2020.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
CLAIMS AND EVIDENCE
Evidence before the Department
Protection visa application
The first named applicant is [an age] year old married female, born in [Country 1], who is now a Portuguese national. In the application to the Department she indicated she renounced her [Country 1] citizenship when she married the second named applicant and she was granted Portuguese citizenship in 2014. She arrived in Australia on a Portuguese passport and at hearing provided a current Portuguese passport. In [specified year] she completed a [degree] at [University 1] in [Country 1].
The second named applicant is the spouse of the first named applicant. He is [age] years of age and born in [Country 1]. He also acquired Portuguese citizenship in 2014. He arrived in Australia on a Portuguese passport. In [year] he completed [College] in [Country 1].
The applicants have two [children] born in [specified years] in [Country 1]. Their [children] continue to reside in [Country 1]. Another [child], born in [year] is a Portuguese citizen, who also lives in [Country 1]. The applicants’ parents and siblings live in [Country 1]. They have no relatives in Australia.
The applicants lived in [Country 1] from [year] to 2004 and from 2004 to 2017 in [Town 1], Portugal.
In response to questions in relation to his reasons for claiming protection in the protection visa application form, the first named applicant provided the following information.
She left Portugal because here health and wellbeing were in danger because of her political opinion. She was threatened by police and was kicked by a policeman. She claimed she was threatened by police and ordinary people for opposing the current political regime. She claimed she was vocal in her political opinion in [Country 1] and that is why she had to renounce her [Country 1] citizenship. She spoke about the current authorities to everyone being of the opinion that they live in a democratic European country. She was warned, then detained for a day, threatened and kicked by policeman. She did not seek help from the authorities as she was harmed by the police. She complained to their bosses, but she received further mistreatment in retaliation. She did not try to move to another part of the country as she would need to divulge the address to the authorities. She cannot live in hiding and she is not able to conceal her opinion. She was threatened with beatings and being placed in prison. It was her political opinion that landed her in trouble. She will be harmed on return. She is an educated person who can see injustice. What is really happening in Portugal is that people are being made to be poor, unemployed and there is corruption. Her opinion is that the current authorities encourage this situation so they can rule uninterrupted. She does not think the authorities will protect her as she was threatened and kicked by the police. She does not think she can relocate to another country.
She cannot return to [Country 1] where her children live as she will be placed in prison there for her political opinion.
The second named applicant indicated he was not making claims for protection.
Supporting evidence or documents
The Department sent the first name applicants a letter on 21 August 2020 asking her to provide the following:
·details and evidence of her political activity in Portugal including dates and location;
·details of her political opinion;
·details of the harm she encountered in Portugal including when the incidents occurred and who caused her harm;
·details and evidence of her imprisonment in Portugal; and
·further detail of the harm she feared on return to Portugal.
As at the date of the Department decision no response was received.
No further evidence or supporting documents was received by the Department.
The interview
The Department did not hold an interview with the applicants.
Summary of the delegate’s decision
The delegate outlined country information from the United States Department of State, Amnesty International and Freedom House noting that freedom of expression is supported by the law in Portugal and none of the sources reflect a different reality. The delegate noted that whilst there is evidence of mistreatment and abuse by police officers in Portugal there are effective avenues for complaints. Those found guilty are punished appropriately. The delegate noted the US Department of State indicated that the authorities investigated each complaint, the Constitution would protect the first name applicant against arbitrary arrest and detention and the government successfully investigates and punishes abuse and corruption.
As a result on the basis of the country information the delegate found that there is no real chance that the first named applicant will experience serious or significant harm on return to Portugal.
Evidence before the Tribunal
Pre-hearing submission
The applicants did not submit a pre-hearing submission or additional documents relevant to their claims to meet the protection criteria.
Medical evidence, including reports from the first named applicant’s General Practitioner (GP) and neurologist, were provided indicating that the first named applicant suffers from [specified health issue]. Her GP who has treated her for many years also noted in a report dated [in] March 2025 her current health issues [on] account of the [injury]. He noted that she has reported that she can sometimes not understand her home language and has memory loss. She also has difficulties walking. She also provided medical evidence of ongoing migraines. Due to these issues and supporting medical reports, the hearing on 23 September 2024 was postponed. As the applicants did not appear at the hearing scheduled for 20 January 2024, the Tribunal dismissed the matter but reinstated it on the provision of medical evidence that the first named applicant was suffering from a migraine on that day.
The hearing
The applicants appeared before the Tribunal on 12 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the [Country 1 language] and English languages.
The first named applicant was able to understand the interpreter. She consented to the second named applicant giving evidence on her behalf, particularly when she could not recall due to her medical issues resulting in partial memory loss. The second named applicant consented to this approach. The applicants consented to relying on each other’s answers, including when concerns were raised. The Tribunal advised the first named applicant to advise if at any time she required a break.
They said they lived and worked in [Town 1], Portugal, which is about [distance] from Lisbon, up until their departure for Australia [in] October 2017.[1] They lived in the same house in [Town 1] they had rented for four years. The second named applicant said he worked in [a workplace] up until his departure for Australia.
[1] Arriving in Australia [in] October 2017.
The first named applicant gave evidence that she did not depart Portugal in fear or have any concerns returning to Portugal. She did not recall being involved in politics, demonstrations or at any time being threatened or harmed by the police or anyone else. When asked why she departed Portugal she said as she was following her husband. She said she had never been threatened and there was nothing specific. She said she had never faced any difficulties on account of her husband’s reasons for leaving Portugal. She later said at one time she thought she may have been followed. The second named applicant confirmed her evidence. He said she was not involved in politics in Portugal, did not demonstrate and had never been threatened or had any problems with the police in Portugal or anyone else. Both applicants indicated she could obtain similar medical care in Portugal as in Australia and there were no barries to accessing medical care. The Tribunal raised country information as to the availability of medical care in Portugal and her access to it.
The second named applicant indicated that he feared return and had concerns returning to Portugal as he had a fight with gypsies in Portugal. He said this is the only reason why he fears return. The Tribunal asked numerous questions about this claim and raised concerns as to its credibility. The first named applicant said she was too unwell to comment on his claims and that she could not recall because of her medical issues when asked. The Tribunal accepts her evidence, especially as it was later in the hearing and draws no adverse conclusion as to her lack of corroboratory evidence as to the second named applicant’s claims.
Th second named applicant said he had been a drug addict in Portugal, taking [specified drugs]. He said prior to coming to Australia he spent three months in hospital in Portugal undergoing drug treatment but could not recall when he left hospital. He stated since he had come to Australia he had not taken drugs. When the Tribunal asked him if he had any concerns returning to Portugal as he would take drugs again, he said he had not taken them in Australia. When discussing this the first named applicant became emotional and she said it was because she was recalling when he was addicted to drugs.
Where relevant, the applicants’ oral evidence and their responses to the concerns raised at the hearing is considered below.
Post-hearing submissions
No post-hearing submissions were provided.
CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are outlined in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account the following, to the extent that they are relevant to the decision under consideration.
· Department of Foreign Affairs and Trade (DFAT), Issues Paper European Union: Freedom of Movement, Migration and Asylum dated 7 February 2023.
· Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case is whether either of the applicants is a person in respect of whom Australia has protection obligations. This involves considering whether either of the applicants:
· has a well-founded fear of persecution in relation to Portugal and meets the refugee protection provisions of the Act?
· meets the protection obligations under the complementary protection provisions of the Act?
For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
Assessment of the first named applicant’s claims
Having sighted a copy of the first named applicant’s identity documents, and on the basis of the evidence at hearing, the Tribunal accepts that the first named applicant is a national of Portugal for the purposes of s 36(2)(a) of the Act. For the purposes of s 36(2)(aa) the Tribunal accepts that Portugal is the receiving country.
On the basis of the evidence of the first named applicant at hearing, corroborated and added to by the second named applicant with her consent to speak on her behalf due to her medical issues; the Tribunal finds the following:
·She did not face any problems in Portugal. She had no personal difficulties.
·She was not threatened as a result of her husband’s claimed fight with gypsies. She was concerned someone was following her because of her husband’s fight with the gypsies before she left.
·She was not politically involved in Portugal or involved in voicing her political opinion in Portugal.
·She did not participate in any demonstrations in Portugal.
·She was not threatened in Portugal because of her political opinion.
·She did not have any negative interactions with police or fear the police in Portugal.
The Tribunal places more weight on her evidence provided at hearing corroborated by the second named applicant than that outlined in the application for the visa. The Tribunal therefore does not accept she was ever politically involved in Portugal or vocal in expressing her political opinion in Portugal and she left because her health and wellbeing were in danger because of her political opinion opposing the political regime in power at the time. It follows it does not accept she was detained for a day, threatened and kicked by police, she complained to their bosses, but she received further mistreatment in retaliation. It follows it does not accept she ever faced difficulties from the community due to her political opinion or expressing it.
As she was not politically involved in Portugal at all nor involved in expressing any political opinion and did not face any difficulties in the past from the police or anyone else and has no concerns now returning to Portugal, the Tribunal does not accept that she will be harmed on return as she will express a political opinion or as she will be prevented from expressing her political opinion due to a fear of harm.
On the basis of her evidence corroborated by that of the second named applicant, the Tribunal does not accept that she faces a real chance of persecution involving serious harm were she to return to Portugal in the reasonably foreseeable future at the hands of the authorities, the community or anyone else as a result of expressing her political opinion or as she will be prevented from expressing her political opinion due to a fear of harm or for the reasons she claims.
Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that she will suffer significant harm on her return to Portugal at the hands of the authorities, the community or anyone else as a result of expressing her political opinion or as she will be prevented from express her political opinion due to a fear of harm or for the reasons she claims.
The Tribunal accepts she will return to Portugal with significant medical issues due to her brain injury that will require medical treatment and medication. Information indicates Portugal has universal healthcare though the Servico Nacional Saude (SNS), financed mainly through taxation.[2] The SNS offers free or low cost access to most essential medical services and the SNS funds up to 90% of necessary medications. The OECD report confirms universal access to residents. 3.5% of people in the lowest economic quintile reported unmet needs.[3] At hearing the applicants advised that there is no difficulty accessing health care and the provision of medical care is the same as in Portugal and Australia.
[2] World Health Organisation Portugal: health system review OECD State of health in the EU Portugal; Country Health Profile 2021 Portugal: Country Health Profile 2021 | OECD >
On the evidence before it the Tribunal is satisfied that the first named applicant will be able to access medical care if she returns to Portugal. It is not satisfied that she would be denied access to medical treatment for any of the reasons set out in s.5J(1)(a) of the Act if she returns to Portugal in the reasonably foreseeable future. With regard to complementary protection on the evidence before it the Tribunal finds that there is no real risk that the first named applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that they will suffer arbitrary deprivation of their life or the death penalty.
The Tribunal therefore finds that the first named applicant does not face a real chance of persecution involving serious harm if she returns to Portugal in the reasonably foreseeable future on account of being denied access to medical services or as there are not enough medical services or as the quality is less than in Australia. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Portugal, there is a real risk that she will suffer significant harm as defined in s.36(2A) on account of being denied access to medical services or as there are not enough medical services or as the quality is less than in Australia.
For the reasons outlined below, as the Tribunal does not accept the second named applicant ever had a fight with the gypsies, the Tribunal does not accept the first named applicant was ever followed or thought she was being followed on account of the second named applicant’s fight with gypsies. It follows the Tribunal does not accept that she faces a real chance of persecution involving serious harm were she to return to Portugal in the reasonably foreseeable future because the second named applicant had a fight with gypsies for the reasons he claims. Similarly, based on the findings above and on the information before it, the Tribunal is not satisfied that there is a real risk that she will suffer significant harm on her return to Portugal at the hands of the gypsies as the second named applicant had a fight with the gypsies for the reasons he claims.
Assessment of the second named applicant’s claims

Having sighted a copy of the second named applicant’s identity documents, and on the basis of the evidence at hearing, the Tribunal accepts that the second named applicant is a national of Portugal for the purposes of s 36(2)(a) of the Act. For the purposes of s 36(2)(aa) the Tribunal accepts that Portugal is the receiving country.
For the reasons that follow the Tribunal does not accept that the second named applicant’s evidence is credible as to these claims. It follows the Tribunal does not accept the second named applicant fears return because of a fight with the gypsies. It follows it does not accept he faced any of the difficulties he claims at the hands of the gypsies. It finds his testimony to be inconsistent and vague and lacking in detail for the reasons outlined below.
At the hearing, for the first time the second named applicant claimed he feared return because of a fight he had with the gypsies. However, despite repeated questioning by the Tribunal in the manner outlined below he was unable to provide a detailed and convincing narrative. For these reasons the Tribunal does not accept the applicant is a credible witness as to this claim.
Q: You claim you departed Portugal in fear?
A: Yes
……
Q: You claim you fear return … you said you fear return as you had a fight with the gypsies, that is the Roma. Anything else?
A: No, nothing else
Q: So, tell me what happened, the detail of this claim; what happened?
A: I will tell you the truth, there was a time when I was young, then I was using drugs then because of that I was using drugs and I was in a special clinic in Portugal, so after the treatment I gave up the drugs and since I have been in Australia 8 years, I have not been using it. I was just working, working home, going to work and home.
Q: So, I’m a bit confused as you said you feared return because of a fight with the gypsies. I’m a bit confused?
A: Because there are a lot of gypsies in Europe and many people are killed by them and that is why I am afraid.
Q: Have you ever had a fight with the gypsies, personally?
A: Yes, personally me I had it.
Q: When was that?
A: The problem started from 2016.
Q: Go on?
A: So, in 2017 the situation escalated and I had a friend in Australia and I spoke to my friend and I came here and the friend helped me.
Q: Your evidence is vague and lacking in detail, if you could give me more evidence as to what happened and why you left in fear?
A: I was scared something else would happen.
Q: But you haven’t told me what happened? So, what happened?
A: It happened because there was some misunderstanding and conflict regarding the drugs.
Q: Ok. So, you need to tell me when, where, what, why, and how it happened. At the moment it is just very vague.
A: It is called [Town 1] and they lived outside the city.
Q: Ok, what happened to you? What happened to make you, when was the fight, what was it about. Your evidence is seeming unconvincing that it actually happened. Sorry not convincing.
A: I’m saying the truth. All the truth. I’m not adding anything.
Q: I’m going to ask you again the details as to what happened with the gypsies which led you to depart Portugal in fear and why you fear return?
A: What happened was one of the gypsies was selling drugs but we did not have any money, so we take it from him, we take the drugs from him and after that they were after us.
Q: When did that happen? How long before you departed?
A: Before we left
Q: How long?
A: About 9 years ago
Q: So, about a year before you departed?
A: Before that we were going to [Country 2], to [Country 3].
Q: So, I’m confused. So about one year before you departed you had this argument?
A: One year maybe a little less
Q: Is there any more detail as to what happened, were threats made?
A: That was it. What else should I add there was nothing else.
Q: Any threats?
A: I lived with my friend in the different city called [Town 2] and when meeting my uncle they were saying when your sister’s son come back we will do this to him.
Q: But you said to me near the opening that you and your wife lived at your home for 3 years before you departed and worked up until the time you departed that doesn’t seem like someone who was being threatened or in fear for the reasons you say?
A: So, we were working before that happened and after this happened we were here we were there.
…….
Q: Your evidence seems vague and lacking in detail as to your claims. I am suggesting to you that your evidence does not appear to be credible or truthful as to what happened to you in Portugal and why you fear return?
A: What other details could I say
Q: Well, tell me about what happened. I mean you are recounting an event that happened in your life and I’ve repeatedly asked you to give me details?
A I don’t have any more details.
When the concern was raised that based on his vague evidence lacking in detail the Tribunal may find that his evidence as to these claims are not credible or truthful as to what happened to him in Portugal despite repeated questioning and why he fears return; he asked what other details could he say. The Tribunal responded by asking him again what happened and noted that he is recounting an event he claims happened din his life and he responded that he does not have any more details to give.
It is the responsibility of an applicant for a Protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal has repeatedly asked him to provide details as to what happened and raised with him that his claims are vague and lacking in specific details. The evidence is not sufficiently detailed for the Tribunal to be satisfied the second named applicant ever had a fight with gypsies, was ever threatened personally or via his uncle and moved to another city or country to avoid the harm and threats or left in fear of the gypsies for the reasons he claims.
The Tribunal also views his behaviour of working in his usual job [and] living at home until his departure for Australia as undermining his claim he left Portugal in fear for the reasons he claims. Specifically, initially at the hearing the second named applicant indicated he lived at their rented home in [Town 1] where they had lived in Portugal until their departure for 3 years; travelling from this home to the airport to come to Australia. He also indicated he worked in his employment [until] he came to Australia. When the concern was raised, he referred to being here and there. It also notes when concerns were raised about his lack of detail as to his claim he, for this first time indicated that he left and lived with a friend in [Town 2] and went to other countries. The Tribunal places more weight on his earlier evidence, as the applicant only referred to moving elsewhere after concerns were raised as to his evidence. The Tribunal is of the view his behaviour of living and working in his home area undermines his claim he was ever threatened by the gypsies, encountered the difficulties he claims and left Portugal in fear.
Therefore, based on the applicant’s lack of credibility, and on the evidence before it, the Tribunal does not accept the second named applicant ever had a fight with gypsies because he did not pay them for the drugs, was ever threatened, ever moved to [Town 2] in Portugal, or travelled to [Country 2] or anywhere in Europe to avoid the harm. It does not accept he has any general fear of the gypsies as they fight with everyone in Europe. It also follows that the first named applicant was not followed by the gypsies because of the second named applicant’s fight with them. It follows it does not accept he was of interest at the time of his departure to the gypsies or anyone else for the reasons he claims.
It follows it does not accept that the gypsies or anyone else, had any interest in the second named applicant prior to or at the time he left Portugal up to his departure in 2017, for the reasons he claims, or will have in the future, based on what happened in Portugal with the gypsies. It follows it does not accept he will or his family will be threatened, harmed, assaulted or abused or be unable to earn a livelihood were he to return to Portugal.
It follows were the second named applicant to return to Portugal that it does not accept he and his spouse, the first named applicant, will be targeted by the gypsies or anyone else for any of the reasons he claims including difficulties he faced in the past. It follows it does not accept he will be harmed at all by the gypsies were he to return.
It follows that the Tribunal is not satisfied that the second named applicant faces a real chance of persecution involving serious harm were he to return to Portugal in the reasonably foreseeable future at the hands of the gypsies for any of the reasons he claims.
Similarly, based on the findings above, the Tribunal is not satisfied that there is a real risk that the second named applicant will suffer significant harm on his return to Portugal at the hands of the gypsies for any of the reasons he claims.
The second named applicant also referred to being a drug addict prior to his departure and being hospitalised for three months in Portugal for drug addiction. He claimed since his arrival in Australia in 2017 he has not taken drugs. When asked whether he is concerned at returning to Portugal as he may again take drugs; he referred to not having taken then in Australia.
Under s.5J(5), the requirement that the persecution involve systematic and discriminatory conduct means that s.36(2)(a) is concerned with persecution of an applicant by other persons for nexus reasons.[4] Therefore the mere impact of circumstances which an applicant may face in the future does not constitute persecution for the purposes of s.5J(4) unless those future circumstances include some systematic and discriminatory conduct by another person or persons.[5] Further, s.36(2)(a) does not encompass the harm an applicant may suffer as a result of an illness arising on return to their receiving country.[6] On the evidence before it the Tribunal does not accept that the difficulties he may face which will result in him becoming a drug addict again includes some systematic and discriminatory conduct by another person or persons and therefore does not meet the definition of persecution and therefore refugee as outlined in the Act.
[4] CSV15 v MIBP [2018] (Collier J, 21 May 2018) FCA 699 at [30]-[31].
[5] See for example WAKZ v MIMIA [2005] FCA 1065 (French J, 2 August 2005) at [49]. s.91R(1)(a).
[6] CSV15 v MIBP [2018] (Collier J, 21 May 2018) FCA 699 at [31] and [34].
The Federal Court has confirmed that the definition in s.36(2A) is framed in terms of harm suffered because of the acts of other persons. The Tribunal therefore finds that it does not encompass self-harm, or harm that a person would suffer as a result of any other illnesses on return to a receiving country.[7] The Tribunal therefore does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Portugal, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act as a former drug addict who will again take drugs.
[7] CHB16 v MIBP [2019] FCA 1089 (Reeves J, 12 July 2019) at [65]-[68] (special leave to appeal from this judgment was refused: CHB16 v MIBP [2019] HCASL 377 (Bell and Nettle JJ, 13 November 2019); and CSV15 v MIBP [2018] FCA 699 (Collier J, 21 May 2018) at [34]. See also SZDCD v MIBP [2019] FCA 326 (Gleeson J, 13 March 2019) where the Court held that deprivation of an appellant’s access to medical treatment in Australia as a consequence of his removal to Bangladesh would not amount to him being arbitrarily deprived of his life under s.36(2A)(a): at [48]; and EZC18 v MHA [2019] FCA 2143 (Besanko J, 19 December 2019) where the Court upheld the Tribunal’s finding that suicide could not constitute the ‘arbitrary deprivation of life’ in s.36(2A)(a): at [47].
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that neither of the applicants meets the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the either of the applicants satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Date of hearing:              12 March 2025
Representative for the Applicant:             Mr Serguei Tchernine
APPENDIX – CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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