2018195 (Refugee)

2018195 (Refugee) [2023] AATA 4359 (19 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Awrangajeb Habib Raj
CASE NUMBER: 2018195

COUNTRY OF REFERENCE: Bangladesh
MEMBER:Wayne Pennell
DATE:19 September 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies section 36(2)(a) of the Migration Act.

Statement made on 19 September 2023 at 1:41pm
CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – Bangladesh National Party activist – political violence – physical assault – false criminal proceedings – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
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 a review of a decision made by a Delegate of the Minister for Home Affairs (‘the Delegate’) to refuse to grant the Applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The Delegate’s decision was provided to the Applicant on 2 December 2020.
The Applicant claims to be a citizen of Bangladesh and applied for a Protection visa.[2] When assessing the application, the Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed to Bangladesh, there was a real risk he would suffer significant harm. Therefore, the Delegate refused to grant the visa[3] on the basis that he was not a refugee as defined by the Act[4] and he was not a person in respect of whom Australia has protection obligations.[5]
[2]The Applicant’s application was received by the Department on 7 June 2019.
[3]The Delegate’s refusal was made on 2 December 2020.
[4]Migration Act 1958 (Cth), s 5H.
[5]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).
The Applicant filed an application with the Tribunal for a review of the Delegate’s decision.[6] At a subsequent time,[7] the Tribunal dispatched a letter to the Applicant via email and advised that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone. He was invited to attend an in-person review hearing scheduled before the Tribunal. The Applicant accepted the Tribunal’s invitation and attended the hearing.[8] He was assisted throughout the review hearing by an accredited NAATI translator proficient in the Bengali language.
[6]On 21 December 2020.
[7]On 13 July 2023.
[8]The review hearing was initially scheduled for 9 August 2023 and subsequently re-scheduled to 13 September 2023.
CRITERIA FOR A PROTECTION VISA
The measures for a Protection visa are set out in the Act[9] and Schedule 2 to the Migration Regulations1994 (Cth). An Applicant for the visa must meet one of the alternative criteria as provided in the Act.[10] That is, the Applicant 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.
[9]Migration Act 1958 (Cth), s 36.
[10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]
[11]Migration Act1958 (Cth), s 36(2)(a).
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.[12] 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.[13]
[12]Migration Act1958 (Cth), s 5H(1)(a).
[13]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[14] 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 the Act, which are extracted in the attachment to this decision.[15]
[14]Migration Act 1958 (Cth), s 5J(1).
[15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]
[16]Migration Act 1958 (Cth), s 36(2)(a).
[17]Migration Act 1958 (Cth), s 36(2)(aa).
[18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]
[19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]
[20]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The Applicant claims to be a citizen of Bangladesh and he arrived in Australia subject to the conditions of a Visitor visa [in] February 2019. The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Bangladesh is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[21]
[21]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the Applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[22]
[22]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[23] 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.
[23]Migration Act 1958 (Cth), s 499.
APPLICANT’S BACKGROUND AND CLAIMS
The Applicant is a married man, with [children of specified ages]. The youngest child was born [time] prior to the Applicant arriving in Australia. His education is limited, and he finished school after completing [grade]. Since then, he has worked much of the time in labouring type employment.
The Applicant’s claims revolve around his association with the Bangladesh Nationalist Party (‘BNP’). The BNP is one of the major political parties in Bangladesh and consists of a number of political wings, including the Bangladesh Jatiotabadi Chatra Dal known as the Student wing, and the Bangladesh Jatiotabadi Jubo Dal known as the Youth wing.
The Applicant claims that his family were BNP supporters and are known as a well-connected BNP family. His family’s connection to the BNP led to his interest in politics and the BNP. In [specified year], he joined the BNP’s Student wing, and later ([year]) he joined the party’s Youth wing.
He has travelled internationally to destinations other than Australia. Between 2004 and 2009 he lived and worked in [Country 1] before returning to Bangladesh. In 2011, he moved to [Country 2] for work and stayed there until 2014. In 2016, he returned to [Country 2] for work.
The Applicant’s involvement in politics heightened in the period leading up to the 2018 Bangladesh General Election. He campaigned for [name] who was the BNP’s candidate for the electoral area [specified]. That campaigning included attending the BNP meetings and rallies, along with ‘door knocking’ to rally support for the BNP candidate. He claimed to have attended a little over 10 meetings and over 20 rallies, all of which took place in Tangail.
His support of the BNP brought him to the attention of some local Awami League (‘AL party’) supporters, who the Applicant identified as [three names]. He claimed that these men began asking him to stop campaigning for the BNP candidate. When he refused to stop, they threatened him and began visiting his home to intimidate and threaten him to stop participating in the campaign. His claims in respect to his support for the BNP in Bangladesh are supported by evidence given by the BNP’s current [Official 1] of the Youth wing, [Mr A]. [Mr A’s] evidence is discussed in greater detail later in these reasons.
The Applicant claimed that in December 2018, he, along with other members of the BNP attended a meeting. Local AL supporters arrived and attacked them, and the Applicant was repeatedly punched and assaulted. He received a deep cut to the back of his right ear.
He later learnt from his lawyer in Bangladesh that some AL supporters had filed a criminal complaint against him at the [Town 1] Police Station. The criminal complaint accused him and other BNP supporters of destroying private property. It is noted that the location of the alleged criminal offences was recorded as [Town 1], which is located approximately [number] kilometres from Tangail where the Applicant lived and campaigned.
To validate the existence of that criminal complaint, the Applicant produced to the Tribunal a copy of a First Information Report (‘FIR’). The FIR showed that the criminal complaint had been made in December 2018 and the Applicant is facing [number] charges under the provision of the Bangladesh Penal Code. The charges are defined as [specified]. The maximum penalty for those offences ranges from six months to 10 years imprisonment.
The Applicant denies that he was ever involved in the alleged offences. It is noted by the Tribunal that he lived in Tangail and all of his campaigning activities for the BNP took place in that city. The Tribunal observes that the FIR alleges that the criminal complaint was made to a police station in another location separate from Tangail.
The Applicant claimed that because of the criminal complaint, he became fearful, and he feared that he would be unfairly imprisoned. He went into hiding, and with the assistance of his brother, a visa was secured for him to travel to [Country 2]. He left Bangladesh in January 2019 and stayed for about a month before returning to Bangladesh. Soon after returning to Bangladesh he was granted a Visitor visa allowing him to travel to Australia.
The Tribunal notes that his application for a Protection visa was not lodged until early June 2019, which was a delay of approximately four months between his arrival and the application being lodged. The Applicant was asked about that delay, and he explained that very soon after his arrival in Australia, he moved to the [named] region of New South Wales where he met another person from Bangladesh called [Mr B]. English is not the Applicant’s first language, and he had never previously been to Australia. Because he was not familiar with the migration laws, requirements and processes in respect to visa applications, he asked [Mr B] to assist him. He paid [Mr B] an amount of money and provided him with all of the necessary information needed for the application. He entrusted [Mr B] to lodge the application. It was not until much later that the Applicant discovered that [Mr B] did not lodge the application until June 2019.
The Tribunal has given careful consideration to his claims as to why there was a significant delay in his application for a Protection visa being lodged, and the Tribunal finds that his evidence in respect to the delay is consistent with what he had told the Delegate in an earlier statutory declaration.
When assessing his reason for the delay in the application being lodged, the Tribunal finds that his explanation is generally credible. Therefore, the Tribunal accepts that it is plausible that the events as he has described them did actually happen. The Tribunal also recognises that where a decision maker finds an applicant to be generally credible, the applicant should be given the benefit of any doubt, and in this case, that benefit of doubt is given.[24]
[24]SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].
Since arriving in Australia, the Applicant has continued to be politically motivated in respect to his support for the BNP. He is a member of the BNP organisation in Australia, and he has attended various rallies and meetings. He said that he has made comments and posted other material on social media in support of the BNP, although the Tribunal does not consider his social media posts to be a determinative factor in deciding this case. When assessing his more recent involvement with the BNP, this is supported by the evidence of the BNP’s [Official 2], [Mr C]. [Mr C’s] evidence is discussed in greater detail later in these reasons.
In respect to him holding a well-founded fear of harm should he return to Bangladesh, the Applicant claimed that because the FIR exists, and the AL party are the ruling political party in power and they control the Bangladesh authorities, if he returns home he will be arrested and unfairly persecuted by being imprisoned for offences he did not commit.
He explained that if he returned to Bangladesh and tried to relocate to some other location within the country other than Tangail for his safety, because the AL party is in power, this made it impossible to hide from AL’s workers and supporters because they are located right across the country.
When explaining what he thought will happen to him if he returned to Bangladesh, the Applicant said because he supported the BNP, he considers that he will be harmed or mistreated, and at worst, beaten to death if he returned.
SUPPORTING EVIDENCE
The Tribunal heard evidence from [Mr C]. [Mr C] is the [Official 2] for the BNP in Australia. The Applicant is personally known to [Mr C] and he supported and corroborated the Applicant’s evidence that he has continued to be a member of the BNP during the time he has been in Australia. He confirmed the Applicant’s evidence that he had a public profile as a member of the BNP through the rallies and meetings he had attended. It was known to [Mr C] that there are association or groups in Australia who are connected to the AL Party who monitor the activities of the BNP.
Evidence was taken from [Mr A]. He is the [Official 1] of the BNP’s Youth Wing in Tangail, Bangladesh. He confirmed that he has known the Applicant for 15 years and that the Applicant had been an active member of the BNP in Tangail. He also confirmed the Applicant’s evidence that he was involved in the 2018 election campaign, and during that period he was the victim of what [Mr A] called ‘some aggravation’ by members or supporters of the AL Party. By ‘some aggravation’ he meant that the Applicant had been attacked and harmed. He confirmed that he did not witness the attack, but he was told about it not very long after it occurred and he was shown a video of the Applicant being attacked.
[Mr A] went on to explain that he was aware a criminal complaint had been made to the police about the Applicant. He said that police officers in Tangail had told him that if the Applicant returns to Bangladesh his (the Applicant’s) life is in danger.
The Tribunal received the oral testimony of both [Mr C] and [Mr A] over the telephone. [Mr C] was in Sydney and [Mr A] in Bangladesh. Although they did not appear personally before the Tribunal, their responses to the questions posed to them was assessed in respect to the veracity of their responses and the credibility of evidence. When individually assessing their evidence, the Tribunal finds that the evidence of both [Mr C] and [Mr A] was given in a straightforward and direct manner, and the Tribunal accepts the evidence of both witnesses, in particular their evidence of the Applicant’s political profile in both Bangladesh and Australia as a member of the BNP.
COUNTRY INFORMATION
The Applicant has provided to the Tribunal numerous news articles and other country information bulletins relating to the involvement of the BNP in political rallies in Bangladesh. The Tribunal accepts that the BNP is often reported as being the recipient of retaliatory action by the AL Party, the government and the authorities.
Available to the Tribunal was other credible and reliable country information produced by the DFAT, particularly the DFAT Country Information Report which provides that Bangladesh politics have long been dominated by the AL and the BNP. The relationship between the two parties is characterised by longstanding enmity and their rivalry is also deeply personal at the highest levels of both parties involving assassinations, and the respective parties viewing those assassinated party members as martyrs.[25]
[25]The DFAT Report, Bangladesh, 30 November 2022, page 20, paragraphs 3.65 – 3.66.
The DFAT Report goes on to provide that the AL has sought to restrict the activities of opposition political parties, particularly the BNP. According to the 2021 US Department of State Human Rights Report, human rights groups and media have reported that 18 opposition figures were arrested or disappeared between January and October 2021, often in conjunction with political demonstrations.

Human rights groups claim that security forces prevent opposition parties from holding meetings and demonstrations, and pressure is placed upon opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes such as sedition.[26]
[26]The DFAT Report, Bangladesh, 30 November 2022, page 21, paragraph 3.69.
In respect to the BNP, the DFAT Report outlines that the BNP claim that they have been subjected to enforced disappearance. Typically, this allegedly involves houses being raided at night; however, daylight raids on party offices have also been reported.
Supporters of the BNP have been arrested during protests for alleged criminal damage or assault on police and the BNP party members claim that violence against them perpetrated by the AL members occurs with impunity.[27] Particularly relevant to the Applicant’s case are reports of false criminal charges and vexatious civil court procedures which are used to harass members of the BNP.[28] That information has a similar flavour to the claims made by the Applicant in this case.
[27]The DFAT Report, Bangladesh, 30 November 2022, page 22, paragraph 3.80.
[28]The DFAT Report, Bangladesh, 30 November 2022, page 23, paragraph 3.83
The BNP leaders claim that the rate of enforced disappearances increased in the lead-up to the 2018 election and those disappearances were used to humiliate senior leaders, and to intimidate other BNP members and discourage them from publicly supporting the party.[29]
[29]The DFAT Report, Bangladesh, 30 November 2022, page 32, paragraph 4.7.
When careful consideration is given to the available country information as it applies to the Applicant’s circumstances, the Tribunal is satisfied that because he is a member of the BNP, and he has actively continued his participation in that party’s activities within Australia, there is a real chance that should he return to Bangladesh he will be exposed to serious harm. That exposure to harm would not only occur because of the outstanding criminal charges preferred against him, but also in respect to the animosity between the ruling AL party and the BNL.
REFUGEE FINDINGS
Real chance of serious harm
In determining that fear can be well-founded without any certainty, or even probability, or that it will be realised, the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs[30] recognised and adopted the principle determined by the United States Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca[31] that a statutory provision reflecting the relevant phrase in the Refugee Convention did not require the probability of persecution, and:[32]
That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one. One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place.[33]
[30](1989) 169 CLR 379.
[31](1987) 94 L Ed 2d 421.
[32]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 397.
[33]Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 421, 431.
A fear of persecution may be well-founded for the purposes of the Refugee Convention even though the persecution is unlikely to occur. A real chance of something happening equates to a risk that is more than remote, that is, being a risk that could not be described as being remote, farfetched or fanciful,[34] and the test for ‘real risk’ imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[35]
[34]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429.
[35]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
When carefully considering the facts, circumstances and the evidence of the Applicant’s case, the Tribunal was afforded the opportunity to monitor and assess his responses to the Tribunal’s analysis of the evidence, and to gauge the genuineness, or the credit of his responses to that analysis during the review hearing.
The Tribunal identified that there were variances between his testimony at the review hearing to the evidence contained within his statutory declarations. The Tribunal understands and recognises that invariably, there is an expectation that on occasions some variances will inevitably occur in circumstances where statutory declarations are made long prior to the testimony of that witness at any subsequent review hearing. It is a matter of the nature of those variances that are important in the assessment of the Applicant’s case.
The Tribunal is satisfied, and finds that in this case, those variances do not in themselves persuade the Tribunal that the Applicant was other than being as honest and truthful as he possibly could when providing his responses at the review hearing. Therefore, it is the Tribunal’s observations and findings that the Applicant’s evidence was generally reliable and credible; and in that regard, the Tribunal recognises the principle that where a decision maker finds an applicant to be generally credible, they should be given the benefit of any doubt where they are unable to fully substantiate all of their claims.[36]
[36]SZLPN v Minister for Immigration and Citizenship [2010] FCA 202, [17].
Therefore, when applying an overall balanced assessment of the evidence and the claims made by the Applicant, along with applying careful consideration to the totality of his evidence and the evidence of [Mr C] and [Mr A], the Tribunal is satisfied that the Applicant has a well-founded fear of returning to Bangladesh as he fears persecution because of his political opinion. The Tribunal is also satisfied, and so finds, that if the Applicant was to return to Bangladesh, that the persecution would involve a threat to his life or liberty because of his membership of the BNP political party and the outstanding criminal complaint filed against him.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the Applicant satisfy section 36(2)(a) of the Migration Act.
Wayne Pennell

Senior Member
ATTACHMENT - Extract from Migration Act 1958 (Cth)
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 4359

19 September 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Standing

Statutory Construction