2101537 (Refugee)

2101537 (Refugee) [2023] AATA 4385 (5 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Mohammed Nasir Ullah
CASE NUMBER:  2101537
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Ann Duffield
DATE:5 October 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 05 October 2023 at 2:34pm

CATCHWORDS
REFUGEE – protection visa – Bangladesh – political opinion – involvement in the Islami Chattra Shibir (ICS) – student wing of Jamaat-e-Islami (JI) – no longer involved in the party – arrest warrant – credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 3 February 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Bangladesh applied for the visas on 17 December 2018. The delegate refused to grant the visas on the basis that the primary applicant was not a person to whom Australia owed protection obligations. Because his application failed to meet the criteria, it follows that the secondary applicant did not meet the necessary criteria and their applications also failed.
The applicants appeared before the Tribunal on 29 September 2023 to give evidence and present arguments.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicants are persons to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The applicant is a citizen of Bangladesh born in [year]. The secondary applicants are his wife and children. They are relying on his protection claims and do not have any of their own.
The delegate did not raise any concerns about the identity of the applicants or the authenticity of their documentation. There is no evidence before the Tribunal to question their identities and so the Tribunal has proceeded to assess the application based on Bangladesh as the receiving country. There is no evidence that the applicants have the right of residence in a third country. Both his children were born in Australia in [year] and [year].
The applicant first arrived in Australia on a student visa in February 2011. He made several further visa applications and entered and departed Australia on several occasions between 2011 and 2018 when he lodged his protection visa application.
The applicant claims that he was a leader of the Bangladeshi Islami Chattra Shibir, which is a student organisation of Jamate Islami, and that in 2008 the Bangladeshi Awami League won the election and started a crackdown on the opposition.
The applicant provided a copy of a letter from [named] Union Parishad dated [in] November 2018 stating that the applicant was involved with opposition political parties strongly for long periods of time.
The applicant also provided a signed letter containing the printed name of [Mr A] the [office bearer] of Bangladesh Islami Chatrashibit dated [in] June 2009. The letter states that the applicant became an active associate member of Bangladesh Islami Chattra Shibbir (ICS) and he was responsible for deputy chairman of [named] region and cultural secretary and working committee member of [specified] region.
The applicant claims that he has been attacked by opposition party people and had to go into hiding.
The applicant claims that in 2018 the police issued an arrest warrant against him. He provided a document dated 5 September 2018 stating that the applicant was involved in violent riots. He also provided a copy of an arrest warrant dated [in] 2019 stating that “there is a complaint of crime so you are being ordered here that you will bring the accused to me and bring them to me. There is no error in it”,.(the applicant was not in the country at the time).
The applicant has travelled to Bangladesh several times including in 2018 when he applied for a new passport and was able to obtain several police clearances from Bangladesh. He stated that in his application he was not connected with any groups that had been involved in violence including protest. The delegate found that the Bangladeshi authorities were thus not interested in him.
Other Information before the Tribunal
Prior to the hearing the applicant sent the following articles and information along with his statutory declaration:
·Desperado- Anarchy and terrorism, Bangladesh.
·Human rights monitoring Report.
·Enforce disappearance, Salahuddin and others.
·Human rights Statement.
·Irresponsible Violence of AL (Awami League).
·Law enforcers leading crimes.
·Secret dealing between Hasina and DGFI.
·Political Killings spread fear in Bangladesh and
·Mayer Daak – Wikipedia
Country information – DFAT Country Information Report Bangladesh 30 November 2022
The AL has sought to restrict the activities of opposition political parties, particularly the BNP and Jamaat-e-Islami (JI) (see following sections). 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 opposition candidates to withdraw from elections, including through preventing them from submitting election nominations or by having them charged with political crimes like sedition.
Social media is monitored in Bangladesh and the government has been proactive in shutting down mobile data networks to prevent the forwarding of WhatsApp messages or viewing online content that has the potential to spark communal violence. It is not possible to predict accurately the kinds of social media or users who would attract such attention. Sources told DFAT that certain topics on social media are more likely than others to attract government attention. These include mention of corruption among senior people, mention of the family of senior figures or their personal lives (especially the ‘Father of the Nation’, Sheikh Mujibur), military affairs, and perhaps LGBTI issues or comments against Islam. The government does not have the capacity, nor perhaps the interest, to monitor all social media posts. The risk of a post being noticed and given adverse attention is greater for higher-profile people or where the post goes ‘viral’ and attracts a lot of attention, whether positive or negative. DFAT is not aware of a set formula or clear set of circumstances that would cause this to occur.
Jamaat-e-Islami
3.85 Jamaat-e-Islami (JI) is an Islamist political party that supported the Pakistani army during the independence war in 1971. JI was banned from participation in the 2014 election based on its anti-secular views. Its members contested a small number of seats in the 2018 election under the banner of the Jatiya Oikya Front, which also included the BNP. While officially de-registered as a political party, JI remains in an alliance with the BNP. But media reports in October 2021 suggested that the BNP was reconsidering the alliance with senior leaders pointing to ideological differences. DFAT understands discussions about the relationship between BNP and the Jatiya Oikya Front are ongoing.
3.86 Generally speaking, journalists are reluctant to report on the party (see Media) and this limits the amount of information that is publicly available. People who are perceived as being supporters of JI claim that they have been followed or intimidated by people they allege to be connected to the government, including when overseas, and sources told DFAT that sometimes affiliation with JI is used as a slur.
3.87 JI followers generally keep a low profile and they do not campaign actively or publicly, but DFAT understands that they are able to recruit new members, albeit in a clandestine manner through personal connections. The size of the party has shrunk in recent years and many former members instead joined other parties, including the AL, though some have joined other Islamist movements, which may or may not be similar. DFAT understands that the party is still well-organised and has some influence in political circles, even if it is not widely discussed in media. Supporters of JI strongly link their religious and political identities, which often results in very strong personal, grassroots support.
3.88 In October 2021, the Hindustan Times accused JI of being behind communal violence directed at Hindus in southern Bangladesh. The newspaper quotes unnamed diplomats as their source.
3.89 Members and supporters of JI keep a low profile. Those who do not keep a low profile would be subject to attention from authorities and thus experience a moderate risk of official discrimination. DFAT is not aware of societal discrimination against JI members (in fact, their broadly conservative Islamist views are often popular in their home communities) but, as with members of the BNP, members of JI may experience fewer employment and business opportunities due to the underground nature of their personal and professional networks
Bangladesh – other country information
The applicant provided a number of articles and reports on violence in Bangladesh. He has provided a document entitled “Desperado: Anarchy and terrorism by Police in Bangladesh”. It does not indicate a publisher or publication date. The report sets out a number of reported police killings aided by the BNP, stating that in 2014 at least 128 people were killed and 88 disappeared. It does not indicate whether members of JI were particularly targeted.
At the hearing the applicant provided a “martyrs list” of young men allegedly members of the JI who have been killed.
The applicant through his adviser also provided a report entitled “Enforced Disappearance of Salah Uddin Ahmed” It appears to detail the disappearance of BNP and JI members under the AL government over a period of time. The report is undated and there is no information about the publishers.
Tribunal hearing
The Tribunal had a detailed discussion with the applicant about his role in JI and the ICL student wing and his activities since his departure from Bangladesh in 2009. The Tribunal put to the applicant some adverse information it had located which described the party as a terrorist organisation that involved itself in violence and several of its leaders were recently convicted of war crimes and hanged.
The applicant told the Tribunal that the JI he was involved with was a spiritual organisation and did not engage in violence. He said that in his involvement he never saw or involved himself with violence. He said that he followed instructions from the central committee which usually involved organising seminars about morality and ethics. He said that the party followed the constitution of Bangladesh, and they taught members how to understand and read the Koran. He did not claim to have been involved in organising or participating in demonstrations.
When he was in the party, he was deputy chairman off the [named] branch in [City 1]. He said that they tried to recruit young people and engage with them by providing cultural programs such as drama, music and theatre and football. He said it had a strong religious focus and they tried to help young people stay on track. He said that they had monthly sessions where the young people who wanted to become supporters had to show their diaries. These diaries listed the number of times that they prayed and how they engaged with others and built good relationships. The applicant told the Tribunal that it was a requirement to join the party that they keep this diary and engage in social and cultural activities. He said that parents of these young people were always very impressed with the way the party helped the youth.
The Tribunal asked the applicant what happened to people who wanted to quit the party or walk away and he said that nothing happens. No one is prevented from leaving or punished for doing so. He said that nothing happened to him when he left Bangladesh in 2009. The Tribunal asked the applicant if he had any ongoing connection or participation in the party and he said that he had not been involved since he left in 2009 but he connected with members and people he knew from that time on Facebook. He says that they talk about what’s been happening in Bangladeshi politics but did not organise or get any further involved with politics.
The applicant said that when the government changed in 2009, he decided to go to [Country 1] to study. Asked why he did not apply for protection when he was in [Country 1], he said that he thought that the government would change, and it would be safe for him to go back.
The applicant confirmed that the last time he went to Bangladesh was in May 2018. He said that the elections were being conducted and there was a lot of violence. He mostly stayed with his mother in the family home but sometimes visited the family of his wife that lived around 40 minutes away. He and his wife married in 2012 and she came to Australia as a dependent on his student visa. They now have two Australian-born children.
The applicant went straight to Australia from [Country 1] in 2011 stating that he was afraid to return to Bangladesh. He did not apply for protection when he came to Australia because he had planned to obtain a 485 visa however the nomination was refused. The Tribunal put to the applicant that the only reason he applied for a protection visa was because he ran out of options to remain in Australia. He said that he had planned to go back to Bangladesh when his 485 was refused but his mother and brother advised him not to return because it was dangerous for him.
The Tribunal put to the applicant that it could not see why it would be dangerous for hm to return. The Tribunal put to the applicant that he had told that he had not been involved in politics or the party since he departed in 2009 and it was difficult to see why anyone would have a negative view of him such that they would want to seek him out and kill him. The applicant said that everyone knew everyone in the [neighbourhood] where they lived including members of the AL. He said that before he left in 2009 they contested different parties in the elections. He said that they knew he was coming back and wanted to harm him.
The Tribunal put to the applicant that he had just given evidence that his family had always been involved with JI and had lived in the same [neighbourhood] all their lives. The Tribunal put to him that despite this, none of the members of his family, or indeed his wife’s family had been harassed or threatened with harm or harmed by his alleged political opponents.
The applicant said that the AL controlled everything including the police. He said that the police wrote up a fake report which included that he was involved in a protest. The Tribunal put to the applicant that he was not even in Bangladesh at the time of the alleged protest and asked what purpose would be served by such an allegation. The applicant said that the police needed to implicate him in the demonstration so that they could issue a warrant for his arrest. He said that they went to his mother’s place to arrest him in January 2019, some four months after the report. He says he cannot go back to Bangladesh because he will be arrested and killed.
The Tribunal put to the applicant that it had serious concerns about the authenticity of the document but even if it was authentic, the Tribunal put to the applicant that the warrant itself seemed incomprehensible and that accusing him of participating in a protest when he wasn’t even in the country seemed particularly inept and served no purpose that the Tribunal could see. The applicant said it showed that the police were under the control of the AL.
The Tribunal put to the applicant that it did not understand why, given his limited involvement in politics some 14 years ago, the fact that he was no longer involved, his family in Bangladesh had not been harmed and that he had never been harmed significantly, or otherwise, whilst in Bangladesh (except for an incident where he received a cut on his arm) that the AL or any alleged political opponents would want to find him and kill him.

The applicant and the secondary applicant provided the Tribunal with some compelling personal information in relation to their lives in Australia and their wish to remain and bring up their children here. The applicant has obtained several qualifications, and both speak excellent English. The children only speak English and would not be able to survive in Bangladesh. The applicant has been suffering from depression and anxiety and the family have been unable to make firm plans given the uncertain nature of their visa status. The applicant said that he missed his family and his uncertain status meant that he and his wife could not see them. He told the tribunal that his mother came to Australia to visit them in 2020. The Tribunal stated that it understood that they would be going through some difficulties but emphasised that despite the compelling nature of their personal circumstances, it had no capacity or discretion to take those matters into account when making findings about his claims of persecution in Bangladesh.
The applicant’s adviser provided additional information about the JI party and the violence surrounding Bangladeshi politics. He also said that returnees to Bangladesh were detained at the airport and disappeared. The Tribunal put to the applicant that it had no information before it indicating that returnees would be targeted and asked if here was any evidence of this policy or any newspaper articles, for example, the Tribunal was told that this was a secret decree and not publicised.
After the hearing the applicant provided an original copy of the English translation of the FIR with an attached photocopy of the FIR in Bengali along with the original copy of the English translation of the warrant of arrest along with a photocopy of the arrest warrant in Bengali.
Findings and reasons
The Tribunal accepts that the applicant may have been involved in the student arm of JI (ICS) prior to his departure from Bangladesh in 2009. The letter from ICS states he was the deputy chairman of the [named] region and cultural secretary and working committee member of [specified] region in 2009. The letter does not describe the duties attached to this role.
However, his description given by the applicant of his activities in the student arm, and the fact that he has claimed that he had no further involvement in the party since that time do not persuade the Tribunal that his involvement, such as it was, would raise his profile adversely with the party’s political opponents such that they would seek him out and cause him harm either in the past or in the future.
He did not apply for protection when he arrived in [Country 1] in 2009 or when he arrived in Australia in 2011. Indeed, he did not apply for protection until all his other options to obtain permanent residence in Australia were exhausted. He has claimed that the reasons he did not apply for protection prior to 2018 was because he believed, or hoped, that the political situation in Bangladesh would change and that the JI would once again be in a position of power. The Tribunal does not accept this explanation but has formed the view that the reason he did not apply for protection was because he did not suffer significant harm prior to his departure and does not have a well-founded fear that he will suffer significant harm in the future for the reasons claimed, or for any other reason, but that he had no other avenue open to him to allow himself and his family to remain in Australia. The applicant has been in Australia for 12 years, he has a wife and two Australian-born children. They have made a life here and want to remain. Indeed, the children will become Australian citizens by act of law on their 10^th birthdays.
Despite claiming that he was subject to harm prior to his departure he returned to Bangladesh in 2012, 2013 and 2018. He does not claim to have been the subject of any adverse attention during the periods he was in Bangladesh and does not claim to have been questioned or detained during his entry and departures. He had nothing to do with the party after his departure in 2009 and did not re-engage with them upon his return on those occasions. His claim that the AL people in his [neighbourhood] knew of his return and were worried that he would become re-involved is not reflected in the evidence. His family and wife’s family remain in their respective family homes where they have lived for decades and been unmolested, unharmed and not threatened with harm by his alleged political opponents or anyone else. He returned, on one occasion for several months, without incident or apparently coming to the adverse attention of his alleged political opponents.
The Tribunal does not accept that there is a warrant for his arrest. The applicant’s claims that the police, under the control of the AL, made a bogus report about his participation in a protest to be able to issue a warrant for his arrest lacks credibility. There is no plausible reason why the AL would have an adverse interest in the applicant such that they would expend resources to concoct a report that targets him. He has been absent from Bangladesh for 14 years. He has not been involved in the JI or its student arm (ICS) for 14 years and there is no evidence that his level of involvement prior to that would not have brought him to the adverse attention of AL. His return to Bangladesh on three occasions between 2009 and 2018 were without incident. The Tribunal does not accept that there is a warrant for the applicant’s arrest and finds that the documents provided to support those claims have been fabricated solely for the purpose of supporting his protection claims.
The Tribunal accepts that the political contests in Bangladesh are frequently marred by violence and that the present AL government is targeting political opponents, including the JI. However, the Tribunal is not satisfied that the applicant’s profile is such that he would be singled out or targeted for harm by his alleged political opponents. In the Tribunal’s view he is of as much risk as anyone else of being harmed in any generalized violence that may arise in Bangladesh.
CONCLUSIONS
On the basis of the evidence before it, the Tribunal is not satisfied that the applicant was harmed in the past, or that he faces a real chance of serious harm for the reasons claimed, should be returned to Bangladesh either now or in the reasonably foreseeable future. The Tribunal is not satisfied, on the basis of the evidence before it, that the applicant has a well-founded fear of persecution for any of the reasons in s5J(1).
On the basis of the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Bangladesh, there is a real risk that he will suffer significant harm. The Tribunal is therefore not satisfied that he is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visas.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Ann Duffield
Senior 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 4385

5 October 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Standing