2109703 (Refugee)

2109703 (Refugee) [2023] AATA 4016 (31 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Jennifer Mary Tode (MARN: 0635889)
CASE NUMBER:  2109703
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Ann Duffield
DATE:31 August 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 31 August 2023 at 11:38am

CATCHWORDS
REFUGEE – Protection Visa –Sri Lanka – homosexual – sexual identity – has suffered significant harm at the hands of authorities – a strong subjective fear of persecution – membership of the particular social group – LGBTI persons in Sri Lanka – applicant’s fear of persecution by reason of his homosexuality is well founded – State protection is not available to the applicant – under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 91, 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 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 13 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant , who claims to be a citizen of Sri Lanka, applied for the visa on 7 November 2016. The delegate refused to grant the visa on the basis that he was not a person to whom Australia owed protection obligations.
The applicant appeared before the Tribunal on 30 August 2023 to give evidence and present arguments.
The applicant was 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.
BACKGROUND
The Department has made an assessment of the applicant’s identity and found that he is who he claims to be and is a national of Sri Lanka. There is no evidence before the Tribunal to lead it to question those findings. There is no evidence before the Tribunal indicating that the applicant has the right of residence in a third country. The Tribunal has therefore proceeded to conduct its assessment on the basis that Sri Lanka is the receiving country.
The applicant is a citizen of Sri Lanka born in [year]. He is a Buddhist. He lived in Columbo with his family and attended a “prestigious” boys’ school. He first arrived in Australia in February 2008 on a student visa. He has not returned to Sri Lanka since his arrival. That visa ceased in March 2012, and he became unlawful until he was granted a bridging visa in relation to the protection visa application subject to this review. The applicant lodged his protection visa application in November 2016. His interview with the department in relation to that application did not occur until April 2021. The delegate refused the application in July 2021.
Protection claims
The applicant claims that he is homosexual and has identified as such from as early as [age] years of age. He became close to a school mate and from the age of [age] years he and his friend engaged in a secret homosexual relationship. That relationship was discovered, and the family of his friend orchestrated a police assault on the applicant.
The applicant claims that he has been subject to multiple police assaults because of his sexual identity. His parents disowned him in 2009 when he told his mother of his homosexuality, and he was unable to continue his studies in Australia.
Before the department
The applicant provided the delegate with additional evidence supporting his claims, including:
a.Letter dated August 2016 from [Dr A] stating that the applicant “has experienced violence and persecution as a result of an aspect of himself that he cannot change”. [Dr A]’s letter goes on to state that “it is my opinion that (the applicant) has always been homosexual throughout his sexual identity development and adult life”.
b.A letter dated April 2021 from [Organisation 1] stating that the applicant joined an LGBTIQ support group that ran for six months in 2018 and that he was a strong contributor to the LGBTIQ consultation group in March 2021.
c.A letter dated April 2021 from [Organisation 1] confirming the applicant’s homosexual identity
d.Various letters of support
The delegate accepted that the applicant was homosexual and experienced some incidents of assault by police in Sri Lanka but agreed with the UK Home Office report (2020) that “the treatment of gay men in Sri Lanka does not amount to persecution or serious harm” and the 2019 DFAT report which “assesses that LGBTI individuals in Sri Lanka face a moderate risk of official discrimination and a moderate level of societal discrimination on a day-to-day basis”.
Country information – DFAT Country Report Sri Lanka December 2021
3.109 Equal Ground, an LGBTI advocacy group, in its 2017 mapping study, found that 46.7 per cent of LGBTI people in Sri Lanka (willing to participate in the study) had experienced police harassment. LGBTI victims of abuse and harassment, including by the police, are generally unwilling to file complaints due to safety concerns and a reluctance to bring attention to their sexual orientation, meaning incidents go largely unreported.
3.110 No legislation exists to protect LGBTI individuals from discrimination or hate crimes. According to local sources, LGBTI individuals are widely seen as ’sexual deviants‘ and routinely experience discrimination and bullying in the workplace and the education and health care systems. Local sources told DFAT that openly-gay couples face obstacles to securing housing and accommodation. As a result, many LGB individuals seek to conceal their sexual orientation (transmen and transwomen are sometimes less able to conceal their status). In its May 2021 study of LGBTI inclusion at work in Sri Lanka, Equal Ground found that 42 per cent of LGBTI workers were not ‘out’ at work; 58 per cent stated they had experienced verbal harassment, and 23 per cent reported leaving their job as a result.
3.112 According to local sources, the LGBTI community faces threats, harassment and forced heterosexual marriage from family and other members of the community. Some middle and upper class, educated and urban Sri Lankans are open about their sexuality within their family and community circles; however, risks are higher for lesbian and bisexual rural women due to more traditional familial expectations and values. DFAT considers reports of violence in the home and public spaces to be credible, and many LGBTI individuals – especially Muslims – hide their identity to avoid harassment. Local sources told DFAT that some families pressure LGBTI individuals to seek treatment to ‘cure’ their same-sex sexual orientation at dedicated profit-making centres or through witchcraft. Local sources told DFAT that hostility toward LGBTI individuals was ‘across the board’ and was not confined to a particular ethnic group or geographic area. Some LGBTI individuals have chosen to relocate to larger centres, especially Colombo, which have larger LGBTI communities and support networks.
3.114 Hate speech against the LGBTI community is common on social media, including against those who advocate for LGBTI rights. In 2016, critics, notably Sinha Le, published threatening comments on social media relating to the 12th Annual Gay Pride Festival and prevented Equal Ground from holding a promotional event at the Good Market in Colombo. Organisers cancelled some public events; police provided protection for participants at others. According to local sources, police protection of LGBTI individuals at public events such as LGBTI marches has increased since 2015. One source identified conservative religious groups as posing particular threats to the LGBTI community.
3.115 LGBTI individuals have few support mechanisms. Only a small number of local NGOs support LGBTI rights, through advocacy or provision of services. The most prominent of these, Equal Ground, provides legal aid and advice to LGBTI individuals and mental health counselling. Equal Ground has operated a counselling hotline for LGBTI individuals since 2005, available in Sinhala, Tamil and English — the only such service in Sri Lanka. Support groups like Equal Ground are concentrated in urban areas. 3.116 According to local sources, anti-LGBTI sentiment is deeply ingrained in Sri Lankan culture and society, particularly in rural areas. The majority of Sri Lankans hold conservative views about sexual orientation and gender identity, and many prioritise collective values over individual rights. DFAT assesses that LGBTI individuals in Sri Lanka face a moderate risk of official discrimination and a moderate level of societal discrimination on a day-to-day basis. The level and frequency of discrimination differs, depending on the socioeconomic status, religion and geographic location of the individual. DFAT also assesses that transgender individuals face a high level of official and societal discrimination compared to other members of the community, and a moderate risk of violence
The US Department of State 2022 Country Report on Human Rights Practices: Sri Lanka Sri Lanka - United States Department of State states that: A 2021 report from Equal Ground, an organization that advocates for LGBTQI+ rights in the country, documented that approximately 10 percent of LGBTQI+ persons who responded to a national survey had experienced physical assault due to their sexual orientation or gender. Some LGBTQI+ persons reported that they feared being arrested for their sexuality if they went to police.
Recent news reports indicate that the Sri Lankan government has announced that it will decriminalise homosexuality and the President has stated his support for this. However, country information again suggests that socio-economic status and family support is likely to be important.
The UK Home Office Report on Sexual Orientation in Sri Lanka notes that same-sex sexual acts for both men and women are a criminal offence even if they are consensual under Section 365 and 365 (a) of the Penal Code. Those who are prosecuted under these sections face a term of imprisonment which may extend to 10 years and also may face a fine. Lack of legal interpretation means that the police can arrest and detain LGB persons even if no sexual act took place.
Further, in the UK Home Office Report, it is noted that “available evidence shows that arrests and prosecutions of LGBTI persons has occurred. Similarly, there is evidence of incidences of mistreatment against them. However, relative to the estimated population of people who identify as LGBTI in Sri Lanka, the scale and extent of such incidences is low. The reporting often describes or conflates discrimination, intimidation, abuse and violence without specifying the scale and extent of each. Therefore, a person may be able to establish a real risk of persecution or serious harm but, in general, LGBTI persons are unlikely to be subject to treatment by the state that is sufficiently serious, by its nature or repetition, to amount to persecution. Each case must be considered on its own facts and the onus is on the person to demonstrate that they would be at risk of persecution or serious harm on return to Sri Lank”. Sri Lanka sexual orientation and gender identity and expression (publishing.service.gov.uk)
The Tribunal hearing
The applicant has been living in a shared house in Canberra. He is supported financially by [Organisation 1] as he has been unable to find employment since around 2016. His Bridging Visa grants him work rights. He has completed a [qualification] but did not complete the studies he came to Australia to undertake.
The applicant told the tribunal that his family have disowned him, and he has not spoken to them since 2009 when he told his mother that he was homosexual. He and his father were never very close, and his siblings are much older than him and he has no relationship with them either. He feels very cut off and isolated. He was unable to tell the Tribunal about what happened to his school friend after he left Australia. He said that his friend’s mother caught them in a compromising position, but he didn’t believe that she would have told anyone else, including his family with whom she was not that close.
The applicant told the Tribunal that as a result of the trauma he suffered in Sri Lanka he has closed himself off from the country entirely. He takes little interest in what is happening there.
The applicant was asked about his experience in Sri Lanka prior to his departure and he recounted the assault by a particular police officer between 2006-2008. He provided some general details about the events and said that these assaults happened a few times a month until around 2008. Asked if he considered the assaults to be rape the applicant said yes. He found it extremely confronting to continue talking to the Tribunal about these matters and the hearing had to adjourn.
After the adjournment the applicant was asked if he told anyone in Sri Lanka about what had been happening to him prior to his departure and he said that he hadn’t. As it was the police themselves assaulting him, it was pointless reporting to them. He felt he had nowhere to go and no-one to talk to.
The Tribunal asked the applicant why he didn’t apply for protection when he arrived in Australia, and he said that he was on a student visa. The Tribunal asked if he knew it had expired and he said that he knew. He told the Tribunal that he was afraid to go to the Department because he thought they would deport him back to Sri Lanka. He was also working unlawfully at the time. He said that he did not know what to do or that he could apply for protection as a gay man. The Tribunal finds the applicant’s concerns to be entirely rational and accepts that they would prevent him from going to the authorities.
The Tribunal does not make any adverse finding in relation to the applicant’s delay in seeking a protection visa.
The applicant told the Tribunal that he found out he could go to Legal Aid and ask for their help to regularise his situation. He said that they referred him to [Organisation 1] because of his evident trauma and mental health issues. It was there that he was able to get some extensive counselling in relation to the trauma he suffered in Sri Lanka. As much as the counselling helped, he said that the matter could not be closed whilst he was continually fearful of being returned to Sri Lanka and of having to re-live the experiences he had there.
The applicant’s passport has expired, and he has not applied for another one. He said that he was afraid to go to the Sri Lanka embassy.
The applicant has become involved in the LGBTQI+ community in [Canberra]. He finds support in that community but does not engage in any social media as he is afraid that he will be discovered by members of the local Sri Lankan community with whom he does not really engage.
The applicant’s fear of being returned to Sri Lanka prevents him from fully engaging in his life in Australia. He said that homosexuality is still a crime in Sri Lanka and if anyone finds out, he will be persecuted or killed if he is forced to return. He has no community or family support there and will not be able to find work. He told the Tribunal that when he first started his university course in Australia the student representative was Sri Lankan and knew who he was and where he went to school. The applicant said that this terrified him, and he has never discussed his homosexuality with anyone in the Sri Lankan community with whom he generally does not engage.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal is satisfied that the applicant is homosexual as claimed and that he has suffered significant harm at the hands of authorities, in particular the police, for that reason when he lived in Sri Lanka. The Tribunal is satisfied that the applicant has a strong subjective fear of persecution should he be forced to return to Sri Lanka either now or in the reasonably foreseeable future.
The Tribunal is also satisfied that LGBTI persons in Sri Lanka form a particular social group (PSG) within the meaning of the Refugee Convention because they share an innate characteristic or a common background that cannot be changed or share a characteristic or belief that is so fundamental to their identity or conscience that they should not be forced to renounce it and have a distinct identity which is perceived as being different by the surrounding society.

The question is whether the applicant’s fear that he will suffer significant harm for that reason if he is returned to Sri Lanka now or in the reasonably foreseeable future, is well-founded.
The Tribunal is mindful of the DFAT and UK Home Office’s view that homosexual men in Sri Lanka are unlikely to face treatment that is sufficiently serious to amount to persecution.
However, in the Tribunal’s view, the country information referred to above indicates that most Sri Lankans hold conservative views about sexual orientation and gender identity and that same-sex sexual conduct is illegal.
In the Tribunal’s mind, the fact that these laws exist opens up individuals, including especially the applicant based on his past experience, to extortion and sexual abuse amounting to serious harm, by the authorities, as well as arrest and a custodial sentence.
While the government has announced that it will decriminalise homosexuality, this has not progressed and may do little to affect the deeply held anti-gay sentiment in the community and government institutions. There does not appear to be any legislation to protect LGBQTI people from hate crimes or hate speech. Many individuals, including the applicant have felt compelled to conceal their sexual orientation to protect themselves. When the applicant came out to his mother her response was to attempt to force him to marry a family friend.
As set out above, the Tribunal has found that the applicant is homosexual. He did not feel able to express his homosexuality in Sri Lanka but was nonetheless systematically raped by a policeman over a two-year period. His family is conservative and whilst well-to-do and educated, have disowned him since 2009 when he came out as a gay man. The Tribunal accepts the applicant’s characterisation of his family and his account of his relationship with them.
The Tribunal accepts that the applicant will not receive any support from family or relatives if he returned to Sri Lanka and if his homosexuality became public knowledge, it is likely that he will suffer discrimination, harassment and ostracization at best. He is also known to police in his home area and his return there may subject him to the systematic rape he experienced prior to his departure. His socio-economic status if he returned to Sri Lanka would be difficult without the support of his family and community and without further education and job experience which he has not received during his time in Australia.
Through his representative the applicant notes that Sri Lanka is facing a devastating economic crisis with over half a million people losing their jobs and an additional 2.7 million people living in poverty. The applicant’s options of finding employment are extremely limited and without financial means he will not be able to subsist and be forced to live on the streets. Being homeless would also subject the applicant to Sri Lanka’s Vagrancy and Houses of Detention Ordinances and he could be imprisoned if not able to pay the fine. Violence in Sri Lankan prisons goes unpunished and there is no intervention by the authorities to prevent ongoing violence. Prison-Study-by-HRCSL_Concise-Version.pdf
The Tribunal accepts that the applicant wishes and intends to live openly as a gay man. He should not be prevented from doing so for fear of his life.
Having considered the applicant’s claims and evidence and taking into account the Tribunal’s findings in the context of the country information referred to above, the Tribunal considers that based on the applicant’s profile with the police, lack of family support and resulting inability to subsist potentially leading to homelessness, if he returned to Sri Lanka either now or in the foreseeable future, as a gay man there is a real chance he would experience the types of discrimination, ostracization and harassment described above, as well as sexual violence that cumulatively, in the Tribunal’s mind, amount to serious harm.
The Tribunal does not consider the chance of this to be remote or far-fetched, particularly given his experience in the past and his profile should he be forced to return.
Based on the Tribunal’s findings above and the country information referred to, the Tribunal is satisfied that the applicant’s fear of persecution by reason of his homosexuality is well founded. Based on the country information, the Tribunal is satisfied that the real chance applies to all areas of Sri Lanka. The Tribunal is not satisfied that the applicant would be able to receive effective state protection, as the state itself is complicit in the prosecution and persecution of homosexuals in Sri Lanka. The UNHCR also recognises that the existence of criminal sanctions for homosexuality hinder access to State Protection. The applicant does not have the right of entry or residence in a third country.
The Tribunal accepts the applicant’s evidence that if he returned to Sri Lanka he would want to live openly as a gay man. The Tribunal accepts that the applicant should not be required to conceal his identity as a gay man in order to avoid persecution in Sri Lanka.
The Tribunal finds that the applicant is outside the country of his nationality and, owing to a well-founded fear of persecution, by reason of his homosexuality, he is unable or unwilling to avail himself of the protection of that country. Therefore, the Tribunal finds that he meets the definition of refugee in s 5(H)1 of the Act.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
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 4016

31 August 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Natural Justice

Procedural Fairness

Remedies

Statutory Construction