2107520 (Refugee)

2107520 (Refugee) [2021] AATA 4081 (6 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2107520
COUNTRY OF REFERENCE:                   United Kingdom
MEMBER:Denis Dragovic
DATE:6 September 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 September 2021 at 12:46pm
CATCHWORDS
REFUGEE – protection visa – United Kingdom – fear of harm as known criminal – personal and criminal history – very long residence in Australia with wife and step-family – resident return visa cancelled on character grounds and no jurisdiction for tribunal to review – risk of re-offending – eligibility for Australian pension and resettlement service, and UK welfare – low-level stigma and discrimination not serious or significant harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2), 65
Migration Regulations 1994 (Cth), Schedule 2
Social Security Act 1991 (Cth), ss 7, 43(1)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 June 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who holds citizenship of the United Kingdom, applied for the visa on 9 April 2021. The delegate refused to grant the visa on 4 June 2021 on the basis of finding that the applicant does not face a well-founded fear of persecution. The delegate considered the applicant’s claims of being a notorious criminal and the stigma experienced by ex-criminals, acknowledging that the applicant is known in the UK and there is some discrimination, but found that overall the level of harm the applicant faces does not meet the statutory test.
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 (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.
ALLOCATION OF THE CASE
This case was initially constituted to Deputy President Jan Redfern. In an effort to clarify the issues DP Redfern held a directions hearing. It was explained that the purpose of the hearing was to go through what the applicant needed to do in preparation for the subsequent hearing. At this session DP Redfern emphasized that the applicant’s previous visa applications and matters related to his visa cancellation as well as how he arrived to Australia are not the issue in the applicant’s protection claims. It was explained to the applicant what constituted Australia’s protection obligations and upon what basis he could claim protection.
It became apparent from this hearing that the applicant had not read many of the relevant submissions made on his behalf and decisions made by the Delegate. DP Redfern arranged for the following documents to be sent to the applicant in detention:
·Application for the protection visa
·Submissions accompanying the application which included a marriage certificate, letter from the Child Migrants Trust, a scan of the applicant’s United Kingdom of Great Britain and Northern Ireland passport, a journal article relating to research on stigma encountered by ex-prisoners in Nigeria, the AAT’s decision relating to the Department’s cancellation of his visa on character grounds finding that it has no jurisdiction
·Decision by the delegate to refuse the protection visa application
·The AAT’s decision on the applicant’s appeal against the refusal of his citizenship
Following this hearing the Deputy President became unavailable. As a result, the case was deconstituted and then constituted to this member. At the hearing held on the 26 August 2021 the member once again went through with the applicant the nature of the law as it relates to protection.
The Tribunal corresponded with the Department requesting further information relating to references to ‘see accompanying submission’ in the application. The Department responded that other than what was made available to the Tribunal, which was provided to the applicant by the Tribunal as noted above, no further submission was made by the applicant.
Correspondence was entered with the previous migration agent enquiring whether any material had been submitted to the Department. On 20 August 2021 the previous agent indicated that due to the lockdown any check of their files would be delayed. As of the date of this decision no further correspondence was received by the then agent.
I find that any loss of opportunity to provide evidence and arguments that could have arisen from the absence of a possible earlier submission has been mitigated at the hearing as the Tribunal had on two occasions explained the law, the applicant exhibited a grasp of his circumstances, was lucid in his recollection of past events and was given ample opportunity to give evidence and present arguments.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant, [an Age]-year-old citizen of the United Kingdom, was given an opportunity to explain his circumstances to the Tribunal. He began by describing how he came to be living in Australia. He said that his mother had died by her own hand and he was the one who found her. With an absent and abusive father, he was placed into an institution at the age of [Age 1] and then taken from the institution, to the docks where he was put on a boat for Australia along with his [siblings]. At some earlier stage he said that he excused his father’s actions because he thought they arose from his experiences in the war, but later realised that it was just an excuse and there was no reason to attack his family in the way he had.
The applicant arrived in Australia [in] December 1949. His new home was another institution, a boy’s home, as he described it, where he spent [Number] years. During this time, he often ran away as he claimed the treatment was extremely bad. He said that the ‘kids were never given a life, they just treated you like garbage’. Twice, he claimed, adults in the institution had tried to sexually assault him. Once when he was [Age 2], he stopped one, but got a beating that he described as horrific. After that incident he went to the local police station, showed the results of the beating, but when the police officer asked who did it to him and he answered, he was sent back. Since then the applicant described having a great distrust of anyone who was in control of his life.
Once he left the boys home he went to a [workplace] in Victoria where he claims he was used as ‘slave labour’. He claimed not to have been paid despite having worked hard.
His first stint in jail was when he was [Age 3] years old for allegedly stealing a vehicle. He denied this to be the case, saying that he was [detail deleted]. But, he acknowledged, that once he started spending time in prison his life went downhill as ‘jail teaches you to be a criminal’. Only 18 months later he was in jail again in NSW and then in [Year 1] he found himself in [a] Prison where he escaped with [Mr A]. He said of his time in prison, ‘busting rocks…doesn’t do the brain a lot of good’.
The applicant said that he has no excuses for being a criminal. He described himself now as a bloody old man and considers this country to be his country. He said that he had never been back to the UK since arriving in 1949 (his movement records suggests otherwise, showing a departure flight to London in [Year], but I place no weight on this contrary evidence) and that he has a good wife and step grandchildren and great grandchildren. He said that he didn’t realise that he wasn’t an Australian until he was around [Age 4] years old and tried to get a passport.
The applicant’s criminal background is relevant in so far as it may impact him if he was to return to the United Kingdom. As such I provide a brief summary from the decision of [the Member] in the case relating to the cancellation of his visa on character grounds (footnotes omitted):
[The applicant]’s criminal history dates back to the late 1950s and includes [convictions] for [Crime 1] in March and July 1966. The March 1996 [sic] conviction arose from offending after [the applicant] escaped from [a] Prison with fellow inmate [Mr A]. [Detail deleted]. The court sentenced [the applicant] to [Number 1] years imprisonment for his involvement in the [offending]. The July 1966 [conviction] related to [the applicant] [details deleted], for which he received a further sentence of [Number 1] years imprisonment.
[The applicant] was convicted in April 2002 for [Crimes 2 and 3], resulting in a sentence of [Number 2] years imprisonment. His most recent convictions were in February 2016, at the age of [Age 5], for [Crimes 4-6]. He received an ‘effective global total effective sentence’ of [Years and months 1] imprisonment, with a non-parole period of [Years and months 2]. [The applicant] remains imprisoned to the present day.[1]
[1] [Citation deleted]
This summary was read to the applicant at the hearing and he was asked if it was a fair reflection of his past. The applicant responded that it would be wrong to say he [details deleted], it was actually a fight, he claimed, and when he tried to knock him out [detail deleted].
Of the applicant’s [siblings], he said that his older [sibling], who was an [Occupation], died of natural causes. His youngest [sibling] worked all over the world as [s/he] was fostered out when [s/he] first arrived in Australia and as such, [s/he] was brought up well and was educated. [She/He] is now living in [Country] and is a [Country] citizen.
The applicant’s personal circumstances include being married since 1992. He has [stepchildren], and [step-grandchildren] and [great step-grandchildren]. He said that he has ‘one or two kids’ of his own but is not in touch with them. He suspected that these off-spring would be in their late [Decade].
The applicant was originally from London. He said that he knew of an aunt who since died and of another cousin who also died in his forties. Regarding his father, he said that the last time he saw him was when he was at the dock in England and his father came to see off his [children].
I asked if he was at risk of reoffending. The applicant said that he isn’t, but he was concerned that if he had no way to survive, he would have to revert to crime. The applicant believes that he would not be eligible for a pension in the UK. I put to the applicant that he would be able to receive the Australian pension. I note that the Social Security Act 1991 at s 43(1) explains that the qualification for the age pension is 10 years of Australian residence. Australian residence is defined in s 7 of the same Act as including the period while the person is the holder of a permanent visa. There is no provision that would lead to the cancellation of a pension previously earned based upon the cancellation of a visa.
The applicant’s movement records show that despite living in Australia since 1949 the applicant only officially became an Australian permanent resident on 2 September 1992. Through his numerous incarcerations and engagements with the Australian government it seems that at no stage did it become apparent to the authorities that the applicant was not a citizen, as he believed, or even a permanent resident. There is no information before the Tribunal regarding how he came to acquire the [resident return visa] in 1992.
By law Australia’s age pension is portable, meaning that aged pension beneficiaries can receive the pension outside of Australia. The only qualification is that after 26 weeks abroad there is a proportionality formula applied. A guide to calculating proportionality is provided in 7.2.2.10 of the Social Security Guide. The calculation is based upon the Australian working life residence calculation. The definition in 1.1.A.340 of the Social Security Guide notes, ‘AWLR refers to any and all periods from the age of 16 to age pension age when a person was an Australian resident. It is a measure of a person's potential working life and does not mean that a person had to have worked or paid taxes.’
The record indicates that the applicant only became a resident in 1992 and his visa was cancelled in June 2017. As such his AWLR would be 25 years multiplied by 12 months minus 4 months (as noted earlier, the applicant spent 4 months abroad during this period). As the calculation is based on the formula of AWLR/420 the applicant will receive approximately two-thirds of the aged pension. As of the time of decision this would amount to approximately $16,513 per year. This fraction only applies after the first 26 weeks spent abroad. For the first half of a year that the applicant was in the UK he would continue to receive the full pension.
The applicant will also be able to access UK based welfare support including the Pension Credit which provides support based on a sliding scale up to a recipient’s income of approximately $17,000p.a. As the applicant will receive less from his aged pension than the cap of the Pension Credit, he will be able to access a pension top up. In addition, the applicant may be eligible for Housing Benefit depending upon where he decides to reside. According to a benefits calculator the Tribunal ran, the applicant may also be eligible for winter fuel payments, free prescriptions, NHS low income scheme, warm homes discount and cold weather payments.[2] Based upon all of this information, I find that the applicant will not revert to crime as he will have access to support.
[2] ‘Entitle To Calculator’ >
Regarding his notoriety, I asked the applicant what he fears will happen if people knew of his background. He said that he was concerned about the stigma associated with criminals. He said that he was told by another friend who had been deported that it’s best not to tell anyone that you’re an Aussie or that they find out that you are a criminal. His friend was a bikie who was told to ‘Get back to your own country’, ‘why are they sending their damn criminals over here’ and other similar abuse. He said that his friend told him it was ordinary people who would cause him grief.
He said that he doesn’t tell people that he’s an ex-criminal, but people find out. He said that in Australia, when he left prison and began a business, people would ask if he was the same [the applicant’s name] associated with [Mr A]. He said that it was amazing how many people knew about it. I put to him that I didn’t know about him and asked why would people in the UK know? He said that he doesn’t know but that articles, books and films have been written and his face has been shown on television.
I noted that in one of the news reports that he had provided in support of his claims of being notorious it stated that ‘[The applicant] was in [Year] arrested at [an] Airport with more than $[Amount], a fake passport and a one-way ticket to England.’ He said that the reporting was wrong. He had his own passport and had obtained an electronic visa to return to Australia on that passport. He added that he was carrying a fake passport, but he hadn’t used it. I asked him why he was headed to the UK after claiming that he had never set foot in the country for over seventy years. He said that he was planning to visit for four weeks because he wanted to search for his mother’s grave and have a headstone put on it. Because of his ignorance of the exchange rate and costs in the UK, which he had heard were high, and not knowing how much he would have to pay for the headstone, he said that he carried $[Amount] in cash. He said that he was arrested, placed in prison for a few weeks, then sent to Victoria, where he was charged with [Crimes 2 and 5].
This most recent conviction, he claims, arose as a result of learning in prison to never rat on his mates. He said that he had a property in the country and had allowed another person to use it as storage. While he wasn’t there, and to his surprise, he claimed [details deleted]. As it was his property, he said that he got caught with it all, but he chose not to wag on those who were responsible as they were his mates.
I accept the applicant’s narration of events from his past, though, I question some of his commentary. I accept that the applicant came to Australia as described, had trouble with the actions of people in the boys’ home and eventually developed a life of crime. While the applicant’s credibility is tested with what appear to be incredulous claims such as the reason he gave for attempting to fly to the UK with $[Amount] in cash, they have not undermined his credibility such that I do not accept his narration of his criminal past especially considering much of it is supported by independent information.

The roots of the applicant’s offending could arise from his experiences beginning with his childhood upbringing through to being taught the trade of crime in jail, but such reflections are not relevant to this review. The pathway that led to his current circumstances is only relevant in so far as it informs his claims of being notorious and that as a result the applicant’s claims that he faces a well-founded fear of persecution or a real risk of significant harm if he was to return to the UK.
I accept that the applicant’s past is easily accessible online. Simple searches on web browsers lead to a number of articles, not only relating to his escape from [a Prison], but his more recent offending. But I do not accept that his past would make him notorious such that he would be considered in a different light to other ex-criminals. His profile in Australia is based upon the unique historical circumstances of Australia. The applicant’s circumstances do lend a sense of notoriety in Australia as he was an accomplice to [Mr A]. But this would have little meaning to the people of the United Kingdom and would not distinguish him from any other criminal with a similar criminal history.
Consideration of harm arising from the applicant’s past offending
The applicant’s written claims are that was he to be returned to the UK he would, ‘face stigmatization and his human rights would be violated…He would be subjected to degrading treatment…because of who he is—a notorious criminal – and ex-criminals are subject to stigmatization and his human rights would be violated.’ At the hearing I asked the applicant whether he had other reasons for fearing returning to the United Kingdom.
The applicant responded that because of his age he was unsure of how he will survive. He said that as an ex-criminal he won’t be able to get a job and he would experience culture shock. Two other people he knows who have been deported, both younger than him, have died within 18 months as he claimed they gave up. He said that he doesn’t want to end up in the same situation. The applicant said that his wife is not medically fit to travel to the United Kingdom. He said that he fears harm from losing contact with his family and friends. He said that its as big a fear as being bashed in jail. He added that mental health is just as much a concern.
He said that he doesn’t know anyone in the UK as he has always thought of Australia as his home.
I note that the UK has a system of criminal record checks for unpaid work, volunteering, paid work or adopting a child. But the applicant has not claimed that he will be traversing these pathways other than seeking work which is discussed below. Relevantly, no claim was made nor is there evidence available to the Tribunal that suggests access to services relating to basic needs necessitates a criminal record check.[3]
[3] Types of Disclosure, mygov.scot, (accessed on 26 July 2018)
There are reports of discrimination against ex-criminals by public officials who are tasked with facilitating access to welfare. A December 2016 article by The Guardian reported that former criminals face discrimination and have issues accessing support including social services provided by government. The article noted:
Like many of the former prisoners…Jason knows only too well the stigma of having done time...
Ex-prisoners we spoke to held out little hope of receiving help from places like Jobcentre Plus and local authority housing teams. In fact, we heard stories of subtle discrimination from the very public sector bodies which they rely on. As one person told us: “They don’t have a clue … The moment you come through the door they’ve got a judgment on you.” Former offenders are being neglected by services that don’t understand their needs and are often labelled as problematic or aggressive.
I put to the applicant that the stigma that he has identified is largely associated with younger people who look for work.[4] He said that he still tries to be active. He said that he needs to get registered to get a job and through the process he would need to declare his convictions. At an earlier stage of the hearing the applicant acknowledged that due to his age he would not be seeking work. In considering the applicant’s likelihood of working I find that at [Age] years of age the applicant would not be employed even if he sought to be which he said that he wouldn’t unless he was destitute. As such the stigma described in these articles do not reflect the type of stigma he would face.
[4]
I place little weight on the academic article submitted regarding stigma of ex-offenders in Nigeria. Public attitudes vary across countries depending upon the law and culture of a particular society. What is the case in Nigeria may not be the case in the United Kingdom. Nevertheless, I note another source, a recent and relevant academic article, references but does not detail stigma towards ex-prisoners.[5] Based upon The Guardian article alongside the academic piece, I accept that there is some stigma for ex-criminals even in circumstances where they are not searching for work.
[5] Helen Codd, ‘Prisons, Older People, and Age-Friendly Cities and Communities: Towards an Inclusive Approach, in International Journal of Environmental Research and Public Health, 9 December 2020
Any challenges the applicant may face due to such stigma or his age or culture shock lead to an inability to navigate UK government systems will be alleviated through the assistance of organisations such as Prisoners Abroad. When this was raised by the Tribunal the applicant said that the organisation had already been in touch. I noted that the services Prisoners Abroad provides includes:
The Resettlement Service provides a range of advice and support once people have been returned to the UK. The support discussed below can be delivered by telephone, e-mail and, where arranged, one-to-one appointments.[6]
[6] Prisoners Abroad,
I now turn my mind to consider the applicant’s circumstances which include that he is advanced in years, has an ex-offender status which I have accepted is easily known and may as a result lead to societal and official discrimination, will be reliant on a limited Australian pension and UK welfare and has family abroad.
Due to the applicant’s age and having acknowledged at the hearing that he would not be working was he to return to the UK, discrimination in employment is not a part of this consideration. Instead, the circumstances of the applicant are such that into the reasonably foreseeable future his needs include access to welfare, health care, accommodation, aged care support and other government and private services. Country information noted above shows that some welfare would be available to the applicant and I note there are groups that provide tailored support to ex-offenders to help them access such support as well as reintegrate into society. Together with the income he would have from the Australian pension along with the top up Pension Credit and other welfare support services I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons arising from his economic circumstances.
The applicant may face some degree of stigma by those he turns to for help, including people working at government service providers. But based upon the examples identified I find that the harm that such attitudes may cause him is very low and would not amount to serious or significant harm.
An ex-offender would bear a stigma that elicits concern by the public including neighbours and others that he interacts with. This concern may in some circumstances rise to the level of fear which could further isolate an ex-criminal, but at [Age] years of age, I find that the applicant’s past would not carry as much weight on how he is perceived as it would was he carrying the same record and was half his age. While I accept that the applicant will face some stigma, including verbal abuse, when it becomes known that he is an ex-criminal, I find that the stigma would not amount to a serious harm or significant harm.
While I accept that the applicant will encounter differences in culture when moving from Australia to the United Kingdom, no details were provided on how this would amount to harm. Considering that the United Kingdom and Australia are culturally aligned due to the common history and shared migration, I do not accept that any cultural differences would lead to culture shock such that he would face serious or significant harm.
While I acknowledge that the applicant will suffer from being separated from his family, I do not accept that the reasons described by the applicant preventing his wife from travelling to the UK are such that they cannot be overcome by either breaking up the flight with stop overs or meeting in a third country. In addition, the applicant can continue to communicate with his wife and stepchildren and their children by way of telephone or video communication apps.
Even was his wife unable to make the trip even with these alternative options, the reasons for this inability are not reasons that would provide a nexus with the persecutory reasons of s 5J(1)(a) as required by s 5J(4)(a) so as to amount to a well-founded fear of persecution, namely for reasons of race, religion, political opinion, membership of a particular social group or nationality. With regards to complementary protection, the wife’s inability to travel and the consequences arising from such inability does not meet the exhaustive definition of significant harm in s 36(2A) as absence from his wife does not risk arbitrary loss of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, in particular as it is settled law that there must be an intentionality by the person inflicting the harm and there is no claim that this is the case.
I have also considered the harm the applicant faces cumulatively including but not limited to the permutation of being away from his family and loved ones, although not a basis for triggering Australia’s protection obligations, could lead to the applicant being vulnerable when faced by other harms and as such being susceptible to a greater risk of more substantial harm. Even when considered cumulatively the applicant’s situation does not amount to him facing a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of his removal.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet 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 the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant 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 the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denis Dragovic
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.
…

[2021] AATA 4081

6 September 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice

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