2107530 (Refugee)

2107530 (Refugee) [2024] AATA 2611 (28 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Mitchell Simmons
CASE NUMBERS: 2107530
2107532

COUNTRY OF REFERENCE: Albania
MEMBER:Kate Millar
DATE:28 March 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 March 2024 at 4:44pm
CATCHWORDS
REFUGEE – Protection Visa – Albania – fear harm from a neighbour of parents-in-law’s property – land dispute – blood feuds – do not accept that there is any form of feud between applicant and neighbour – applicants do not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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

[Mrs A] and three of her children have applied for protection visa because they claim to fear harm from a neighbour of parents-in-law’s property in Albania. They claim [Mrs A]’s husband was shot by the neighbour because of a dispute about the land.
Their protection visa applications were refused by a delegate of the Minister under s 65 of the Migration Act 1958 (the Act), and this is a review of the decision to refuse their visa applications.
[Mrs A] appeared before the Tribunal on 27 September 2023 to give evidence and present arguments. The Tribunal adjourned on two occasions to enable it to hear from a witness Mr [B], and to allow both [Mr C] and [Mrs A] to comment on information and provide further submissions. [Ms A] and the children were represented in relation to the review.
PROCEDURAL MATTERS
[Mrs A] appeared as a witness in the review of her husband, Mr [C]’s matter, immediately prior to the hearing of the combined applications of [Mrs A] and her children. A hearing for the combined applications of [Mrs A] and [Miss D] were heard on the same day to allow [Mrs A] the opportunity to specify any claims for herself and the children that are separate to [Mr C]’s matter. The parties consented to their oral evidence in each matter to be treated as evidence in the related matters.
While the parties consented to a combined decision relating to all family members, in the interests of clarity these reasons have been provided for matters 2107530 ([Mrs A], [Master E], [Miss D] and [Mr F]) and 2107532 ([Miss D] ). However, these reasons should be read together with the reasons in [Mr C]’s matter in 2107527 and extracts from the reasons in [Mr C]’s matter have been reproduced below where necessary.
Information from [Mr C]’s oral evidence in matter 2107527 was provided to [Mrs A] under s 424A of the Act, and she was invited to comment on or respond to this information. No comments or response were provided. [Mrs A] had previously provided a joint statement with her husband on information provided to him under s 424A of the Act in his matter, and this statement has been taken into account in both matters.
BACKGROUND
[Mrs A] was born [in] [City 1], Albania and is one of three children. She is a citizen of Albania. Her parents moved to Tirana when she was approximately [age] years old and she started and completed her schooling in Tirana. [Mrs A]’s parents live in Albania near the capital in Tirana. Her younger brother lives in [a country]. She said she had not worked from the time she married, but later explained that sold some [items] to shops.
[Mrs A] married [Mr C] on [date] March 2012, and they have four children, three of whom are also applicants for the visa.
[Mrs A] and her eldest child [Mr F] arrived in Australia on [date] November 2017 to join her husband Mr [C] who was already in Australia, and [Mrs A] and [Mr F] applied for protection visas on 27 November 2017. [Mrs A] and [Mr F] had travelled to Australia on false [Country 1] passports, and [Mr C] had arrived in Australia by boat at the Territory of Ashmore Reef and Cartier Islands.
[Miss D] and [Master E] were born in Australia and were added to [Mrs A]’s visa application on their birth.[1] [Mrs A] and [Mr C] have a fourth child [who] was also born in Australia but is not included in their visa applications.
[1] Under r.2.08 of the Migration Regulations 1994
[Miss D] was taken by the Department to have combined her application for a protection visa with each of her parents. As at that time her father’s application as considered invalid, [Miss D] has an application in her own name in matter number 2107532. The review of the separate decision in relation to [Miss D] has been combined with this 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.
CLAIMS
In her application for the visa, [Mrs A] claims her life is at risk as is that of her son and that she and her son will be killed. She claims her husband was shot in March 2013. In response to the question of whether she sought help after the harm, she states [Mr G] has a big family and connections in the police. She states she moved to her parent’s house after her husband was shot and she fears being killed by [Mr G] or by a member of his family. In response to questions about relocating she states “I moved to my parents house in Tirana but if I am located by the [Mr G] family I will be killed.”
[Mr F] is also an applicant, and his application form refers only to the claims of his parents. As explained in the associated matter, [Master E] was added to an application of [Mr C] when [Mr C]’s claim was incorrectly thought to be invalid. [Master E] and [Miss D] were added to [Mrs A]’s application. At the hearing [Mrs A] made claims that relate to her children as specified below.
[Mrs A] provided a statutory declaration dated 13 December 2017 in which she states that in March 2013 while she and [Mr C] were planting grapes on her parents-in-laws’ property, [Mr C] was shot in the leg by [Mr G] because [Mr G] wanted some of [their] family land. After [Mr C] was shot, she and his brother took him for medical attention. [Mr G] comes from a large and powerful family who are members of the Democratic Party. They are close to [Mr H] who was [a politician]. At elections, [Mr G] and his brothers buy votes in Tirana.
From the time her husband was shot she and [Mr F] went to live with her parents in Tirana. Under the rules of blood feud, she can be inside at her parents’ home because any action taken by [Mr G] towards her would involve a blood feud with her father’s family. She is not safe if she leaves her parents’ home at all. She claims she will be shot and killed by a member of the [Mr G] family in Tirana and the [Mr G] family will shoot and kill any person related to her husband’s family. She claims her son needs to go to school, and she is worried he will be shot and killed by a member of the [Mr G] family.
[Mrs A] said at hearing she fears the conflict with Mr [Mr G] if she returns to Albania. She said she does not fear anyone other than Mr [Mr G]. She said that because of Mr [Mr G]’s connections he will not be punished if he kills them.
On being asked if she was fearful for her children, [Mrs A] said she was scared for them. She said the risk to her children is they will not be schooled properly, they will be on edge and they will not have a safe life because of the neighbour who could kidnap or kill them.
Approximately three years after her husband left Albania, [Mrs A] said she saw [Mr G] while she was taking her son to kindergarten. She said she was scared and ran to her home. She did not have any interaction with him. He looked at her but did not speak to her or approach her. She did not know how he recognised her, as she had only seen him on one occasion when he shot her husband.
INFORMATION PROVIDED UNDER S 424A OF THE ACT
Information provided at the hearing of [Mr C]’s matter was provided to [Mrs A] under s 424A of the Act before a decision was made on either matter.
This information was:
1. Information from Mr [B]
In [Mr C]’s application, information was provided from Mr [B]. Mr
[B] provided oral evidence as well as a response to written questions.
The UK Upper Tribunal [and]
the Immigration and Refugee Board of Canada (at Responses to Information
Requests - Immigration and Refugee Board of Canada (irb-cisr.gc.ca)) found Mr
[B] is not a truthful or reliable witness, and is alleged to have taken payment for
attestation letters regarding blood feuds.
2. Maps of the area and [Mr C]’s oral evidence
At the hearing of his matter, [Mr C] identified his family property on google
maps. The satellite images of the property show the property is maintained along
the border with Mr [Mr G]’s property with plants at regular intervals.
3. Similarity of oral evidence in the hearing for [Mr C]
As provided in a letter to [Mr C] (attached) to which you have previously
responded, your evidence as specified in this letter was consistent with [Mr C]’s
oral evidence and inconsistent with your previous declaration.
4. [Mr C]’s parents and brothers
[Mr C] gave evidence that his parents and his brothers, while they lived in
Albania, were able to go about their day-to-day life, move around to do shopping
and attend to their normal business. His brother [Mr I] was able to continue to
live at the property and work in a bank until he migrated to [a country] in
2023, and his brother [Mr J] lived at the property and worked in painting and
rendering in Albania as well as periods in [Country 2] until he migrated.
If I rely on this information, I will find that the ability of his parents and brothers to
function in the community does not support the claims to fear harm from [Mr G].
The information previously provided under s 424A, and to which [Mrs A] had responded in a joint statement with [Mr C] was:
·     The similarity between their oral evidence at hearing,
·     [Mrs A]’s account of events when [Mr C] had been shot was inconsistent with her previous statement but was consistent with [Mr C]’s oral evidence,
·     That [Mrs A] had provided inconsistent information in the interview with the Department to her oral evidence at the hearing, which was consistent with [Mr C]’s evidence.
·     That [Mrs A] gave oral evidence that she was not aware of any threats to family members which was inconsistent with the information provided in an interview with the Department.
·     [Mrs A] stated that she had not worked since she married but then also said she went to work once or twice to be near their son who was at kindergarten.
[Mrs A] and [Miss D] did not provide any further comments or responses to this information.
ASSESSMENT OF CLAIMS
For the same reasons as provided in [Mr C]’s matter I do not accept that [Mr C] was shot by [Mr G], that there is any form of feud between [Mr C] and [Mr G], or that [Mr C], [Mrs A] or any of their children are at risk of harm from [Mr G] or his family if they return to Albania.
These reasons, as extracted from the decision in 2107530, are:
70.The central element of [Mr C]’s claims is that his neighbour either wants or disputes ownership of a part of his father’s land that he will inherit. After the hearing, he provided documents showing his father’s ownership of the land.
71.[Mr C] said that on his father’s death, the land will be divided into three equal portions, and he and his two brothers will each receive a portion. He claims the land he will inherit is a strip that adjoins [Mr G]’s property, that [Mr G] knows this and that he will harm him because he will inherit the land.
72.During the hearing, a satellite map of the area was considered to identify the property and the boundary which [Mr C] said is the cause of the dispute. He identified his father’s property and the neighbour’s property as well as the position on the property where he said he was standing when he was shot.
73.[Mr C] provided a copy of the same map after the hearing showing what he said would be the division of the land between himself, his brother [Mr J] and his brother [Mr I]. This shows [Mr I] inheriting the house and its surrounds, [Mr J] inheriting a parcel to the front of the house, and [Mr C] inheriting a strip along the boundary with [Mr G]’s property.
74.The property has a brick wall surrounding it, and a brick wall lies between [Mr G]’s property and the boundary of the [Mr C’s family] property which said to be in dispute. [Mr C] said this wall was built while Mr [Mr G] was away [overseas], and Mr [Mr G] returned in 2013 and was angry because he said the fence was not on the border of the property. He said Mr [Mr G] was able to shoot him despite the brick wall because he shot him from the front of his house which is higher.
75.[Mr C] explained that the firearm used to shoot him is a small shotgun that fires a cluster of pellets, and which is used for hunting deer or rabbits. This weapon fires a cluster of bullets which open up to kill an animal. [Mr C] said he was directly hit by the cluster from the gun in his right leg. He estimates [Mr G] was 7 – 10 metres away when he fired. He said it was fortunate he was wearing thick boots and that none of the pellets broke his skin. He went to the doctor and his leg was red and black from the cluster and he was in pain. He said it did not go into his skin because it was not a proper bullet, as the shotgun is only used for killing animals.
76.If the firearm used against him is to hunt deer or rabbit, I would expect that he would be injured to a greater degree than his skin being red and black and for here to be some evidence of the injury caused to him. I do not accept that wearing thick boots would prevent a penetrative injury from a firearm that is used to hunt deer. He was invited to provide further information on the firearm and the effect of an injury from that firearm at the hearing, however no further information was provided.
77.I do not accept [Mr C] could be shot from 7 – 10 metres by a type of shotgun intended to kill deer and rabbits and not suffer a serious injury, or that his skin would not be penetrated regardless of his boots.
78.[Mr C] claims that he was shot while planting grapevines on his father’s property. On the satellite map, the satellite images show that the property along that boundary is well maintained with trees planted on the boundary at regular intervals, including at the place at which [Mr C] claimed he had been shot. [Mr C] could not provide a satisfactory explanation for the well-maintained land and the plantings near the boundary which he said may be fruit trees or shrubs that had “just come up”. He then modified his claims to state [Mr G] does not object to the land being maintained but does not want anything built on the land. This does not explain why [Mr C] was shot while he was planting grapevines, and he was not undertaking any building activity on the land.
79.I do not accept that if [Mr C] was shot for planting grapes on the land, the land could continue to be well-maintained with orderly planting as shown by the satellite images on the map.
80.[Mr C] also claimed in the course of the hearing that he will inherit the strip of property that adjoins the boundary with [Mr G], and that [Mr G] knows he will inherit this part of the land. He said this was why he was targeted while his brothers and father continued to remain in the property unharmed. This would involve an agreement between family members of which the only evidence is [Mr C]’s oral account. It would also involve [Mr G] knowing about this agreement. Given the purported animosity from [Mr G], it is difficult to see how he would be aware of any such agreement.
81.I do not accept [Mr G] knows which portion of the land [Mr C] will inherit, or that he will inherit this particular part of the land and would solely target [Mr C] but not target his brothers or his father if the dispute is about the boundary marked for the property to a title held in the name of [Mr C]’s father.
82.His parents have retired and continue to live at the property. They can move around in the community and attend to shopping and their day-to-day life. [Mr C] said his mother had an incident where she was frightened by [Mr G] and fractured her hip. [Mr C] said this happened because [Mr G] verbally assaulted her when he was passing. This claim has been amended over time, with both Mr and [Mrs A] separately claiming at an interview with the Department that his mother was pushed by [Mr G], and [Mr C] stating he could “provide a whole file with proof and evidence”. Both [Mr C] and [Ms A] stated at hearing that [Mr G] yelled, and his mother slipped and fell, breaking her hip. While I accept that [Mr C]’s mother fell and broke her hip as recorded in the medical certificate, I am not satisfied [Mr G] was involved in this incident or that there was any intention to harm her, as his parents are otherwise able to move freely in the community.
83.Both of [Mr C]’s brothers have lived with their families at his parent’s house. His brother [Mr J] has been able to come and go to work in [Country 2] and his brother [Mr I] worked at a bank while living at their parent’s property. His brothers migrated in 2022 and 2023 respectively, a period of nine to ten years after the claimed shooting of [Mr C].
84.[Mr C] said it is “possible” [Mr J] has been threatened by [Mr G], but that [Mr J] did not tell him anything and said not to worry. [Mr J] has been able to continue to travel for work.   I do not accept [Mr C]’s brother [Mr J] migrated [because] it was not safe for him in Albania as claimed because he was able to come and go when he was working in [Country 2], and lived with their parents at the property together with his wife and children. [Mr I] and his family also lived with [Mr C]’s parents and was able to continue to work at the bank. I do not accept [Mr I] wanted to leave because of what happened with [Mr C].
85.While I am considering the potential harm to [Mr C], and not the threat to his parents or brothers, the ability of the family to function in the community does not support his claims. [Mr C] stated earlier that whether there were threats against his family is irrelevant to whether there is a threat to him. He has since claimed his brothers left Albania because they were fearful, and I do not accept [Mr C]’s claims that his brothers migrated because of the dispute with Mr [Mr G] or because he had been shot. The ability of his family to function in the community does not support his claim that he will be harmed, or the reason he will be harmed. If the dispute is about the boundary between [Mr G]’s land and [Mr C]’s father’s land, it would be expected that [Mr G] would approach or seek a realignment of the boundary or compensation from [Mr C]’s father who holds the title to the property rather than targeting [Mr C].   I have also considered the specific claim that he will be harmed independently to his other family members. [Mr C] claims that as he is the person who stood up to [Mr G] he is targeted, however there is a lack of evidence of any interaction with [Mr G] showing that he stood up to him, and I do not accept this is the case.
86.I do not accept [Mr C]’s wife and child were in hiding after he left Albania as his child attended kindergarten and his wife attended work on at least some occasions. His wife states she saw [Mr G] on two occasions but was not approached or harmed.
87.I do not accept that [Mr C] would seek out [Mr G] and shoot him first “as a form of self-defence”. If he did shoot [Mr G] and faced consequences for killing or harming another person, this would be because of his own actions and not due to the actions of others. This is a threat to others and does not amount to serious or significant harm to [Mr C].
88.I do not accept there is a dispute between [Mr C] and [Mr G] about land in Albania. As I do not accept there is a dispute between [Mr C] and [Mr G], I do not accept there is a blood feud or that Kanun law or the doctrine of Lek Dugajini apply. I do not consider Mr [B] a reliable witness, and do not accept that Mr [B]’s organisation attempted to mediate this dispute.
89.Even if there were a dispute, which I do not accept, I also do not accept that [Mr G] has influence or that he has any direct connection with [Mr H] or [a named person]. No information in support of this claim was provided by [Mr C]. If this were the case, and this was a boundary dispute as claimed by [Mr C], other pressure could have been placed on [Mr C]’s father or brothers to cede title to the disputed part of the land to [Mr G] in the ten years since he left Albania. That there is no evidence this occurred does not support [Mr C]’s claim that [Mr G] would have any influence outside of his immediate region or would seek out or harm [Mr C] or his family if he returned to another part of Albania.
90.I accept [Mr C] left his wife and infant son in Albania to come to Australia, but do not consider this enhances his credibility. His claim that he has not sought to enhance his credibility by paying for false reports of what occurred is undermined by his reliance on Mr [B], a witness who has been discredited, to support his claim.
91.[Mr C] has claimed that the delay in interviewing him about his claims should be taken into account in assessing his credibility, however it is unclear how this delay should affect this assessment. He states that because his claims have remained consistent this adds to his credibility. His claims have remained consistent in stating he was shot by [Mr G] because of a land dispute. These are not complex claims and can be maintained over time. I do not think this consistency overcomes the evidence from the satellite images, the ability of his family to function in the community for a lengthy period after he left Albania, and the ability of his wife to attend work in some form and the ability of his son to attend kindergarten.
92.As I do not accept the events claimed by [Mr C] occurred, and no separate claims have been made on behalf of [Master E], I do not accept there is a risk of harm to [Master E] if he were to return to Albania.

[Mrs A] was asked if threats towards her or the children had ever been conveyed to her, she said that she did not have any contact with anyone. Her response to this question was revisited towards the end of the hearing, and she was asked if anyone else had threatened her or her family on [Mr G]’s behalf, and she said she was not because she never went outside. This is inconsistent with the which information she gave at the interview with the Department where she said she had been sent threatening messages.
I do not accept that [Mrs A] or [Mr F] have been threatened, or that they or [Miss D] or [Master E] would be threatened if they return to Albania.
[Mrs A] said she had enrolled [Mr F] at kindergarten by going to the kindergarten and speaking to them. She said her parents were not asked where she or her husband were because her parents are not outgoing with other people. Given her evidence about taking [Mr F] to school and, on at least some occasions, working, I do not accept she was unable to leave her parent’s house. I do not accept that her children would feel threatened or unsafe, or that they would be unable to attend school.
As found in the associated matter, I do not accept that there is any form of feud between [Mr C] and [Mr G], and I do not accept that [Mrs A] or the children would be at risk of harm from [Mr G] or his family if they return to Albania.
ARE ANY OF THE APPLCIANTS OWED PROTECTION OBLIGATIONS?
As I have found none of the applicants would be harmed if they return to Albania, I find they do not have a well-founded fear of persecution as defined in s 5J of the Act. Therefore, they do not meet the definition of a refugee in s 5H of the Act. As none of the applicants are refugees, they do not meet the requirements in s 36(2)(a) of the Act.
As they do not face a real risk of significant harm if they return to Albania, they do not meet the requirements of s 36(2)(aa) of the Act.
As none of the applicants meet the requirements in s 36(2)(a) or 36(2)(aa), they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Kate Millar
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 hum[Mr J]tion 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 hum[Mr J]tion 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 r[Miss D]dence, 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 r[Miss D]dence 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.
…

[2024] AATA 2611

28 March 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction