2115044 (Refugee)

2115044 (Refugee) [2024] AATA 3976 (24 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Vince Monardo
CASE NUMBER: 2115044

COUNTRY OF REFERENCE: Macedonia, Rep. of North
MEMBER:Sue Zelinka
DATE:24 September 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 September 2024 at 10:48am
CATCHWORDS
REFUGEE – protection visa – Republic of North Macedonia – particular social group – secret marriage to a cousin – family shame – abusive messages – church remarriage – applicant’s reconciliation with his father – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
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 19 October 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 Macedonia (the Republic of North Macedonia) applied for the visa on 25 May 2018. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant met the criteria for refugee as set out in s 5H(1) of the Migration Act.
The applicant appeared before the Tribunal on 2 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant in this case is [an age]-year-old man from [City 1] in Macedonia. In 2007 he met his older cousin [Ms A] who lived in Australia: her parents ([details deleted]) had migrated to Australia some years earlier and she came back to Macedonia on a visit. In 2011 [Ms A] again visited [City 1] and on this visit, which lasted three months, she and the applicant began a relationship in secret. In the following year (2012) the applicant came to Australia on a student visa and he stayed with his aunt, uncle by marriage and cousin [Ms A]. They continued their relationship clandestinely, partly because [Ms A] was [number] years older than the applicant and partly because they were first cousins and such a relationship was generally frowned on in Macedonian society.
[In] September 2013 they married in secret with only two close friends in attendance as witnesses. [Ms A’s] mother by this time had found out about the relationship but she did not attend the wedding. Nor did she tell anyone about the relationship: not her husband, nor her [relatives] in Macedonia. In 2015 the applicant paid a visit to Macedonia but did not say anything about his relationship with [Ms A]. [Ms A’s] father died, still not knowing that his daughter had married her cousin.
After his marriage the applicant obtained a temporary partner’s visa in Australia in October 2013. The applicant and [Ms A] then had marital problems and separated in 2017. [Ms A] withdrew her support for a permanent partner visa leaving the applicant to apply for a protection visa which he did in May 2018.
The applicant and [Ms A] divorced and in May 2022 the applicant married again; he and his second wife had a baby in [specified year].
Claims
The applicant initially presented his claims in his protection visa application saying simply that he feared hostilities due to his ex-partner if he returned to Macedonia. At a departmental interview, he expanded on this claim saying that in 2018 knowledge of his marriage reached Macedonia, [Ms A] having told some friends here who apparently relayed it back to Macedonia. The applicant received an angry phone call from his father who said he had brought shame on the family by marrying his cousin, something not allowed within the Orthodox church.
The Department put it to the applicant that he had transmitted money to his father in October 2018 and that this undercut his argument that he was estranged from his father. The applicant said that sometime in 2018, after the abusive phone calls but before October, he and his father had repaired their relationship. However, his father told him that the rest of the family was still very angry with the applicant and would seek to punish him if he returned. They did not know that the applicant and his father were in communication. The father, in fact, changed his surname by deed poll to demonstrate to the family that he was distinct and separate from his son (the applicant). The Department noted that the money was indeed transmitted to a person with this name but whom it accepted to be the applicant’s father because the bank transfer details remained constant before and after the name change.
The Department found that as the applicant had feared harm primarily at the hands of his father, and had now reconciled with his father, he did not have a well-founded fear of harm.
To the Tribunal
Before the Tribunal hearing, the applicant sent a written submission in which he outlined his marital history and the problems caused by the revelation in 2018 of his previously secret marriage. He said that his ex-wife had been upset by the applicant’s involvement with another woman and had then “proceeded to inform our family about our relationship” (that is, the marriage, which at that point was reaching its end). The applicant said his father and family members called from Macedonia and threatened him. The applicant singled out his [Relative A] whom, he said, was in a criminal gang called Komiti. [Relative A] specifically threatened to kill the applicant and said that the gang, which is spread through Macedonia, would also assist in this quest.
The applicant said he changed his phone and deleted his social media. He also phoned the police in Macedonia’s capital, Skopje, to report [Relative A’s] threats but they pointed out that as the applicant was in Australia, they were not in a position to help.
The applicant’s representative also made a written submission prior to hearing. He provided an unofficial translation of the Macedonian Laws of the Family in which Article 20 reads as follows: “Blood relatives in the same line may not stipulate a marriage …as well as biological brothers and sisters …nor first cousins”. He said there was no doubt that “marriage between cousins is legally and culturally frowned upon”. He suggested that the applicant may be a member of a particular social group constituted by “Macedonian first cousins who have entered a love marriage”. He stated that even though the applicant’s father no longer wishes to harm him, other family members like [Relative A] are still a threat. He also included country information indicating that there are low levels of trust in the police in Macedonia and that corruption is a serious problem and prevalent. He also stated that Macedonia is a very small country so there was no reasonable chance of relocating within it in order to avoid harm.
At the hearing, the Tribunal put it to the applicant that the threats of harm were made six years ago and since then he had divorced [Ms A] and they had no contact with each other. The Tribunal put it to him that there was no real chance of any relatives harming him in the reasonably foreseeable future, so long after the termination of what they saw as a ‘shameful’ episode (his marriage with [Ms A]). The applicant replied that the passage of time did not matter because the important issue was that he has brought shame on his family.
The applicant said that he continued to fear harm from his [Relative A] who was a criminal in a Macedonia-wide criminal network called Komiti. The Tribunal put it to him that Komiti was a football supporters club. The applicant appeared surprised that the Tribunal knew of Komiti but the Tribunal said there was an entry in Wikipedia, noting that the club had formed many years ago and that it took its name from the komitadjis who were anti-Ottoman rebels. In keeping with its name, the current Komiti members are ultra-nationalists and often inclined to football violence. They travel around Macedonia to support their team Vardar in both football and handball and will also travel to other European towns for ‘away’ games and tournaments. The applicant agreed that this was the Komiti group of which [Relative A] was a member.
The applicant referred to his father’s statement written shortly before the hearing. The father admitted to threatening to kill his son when he heard, in 2018, of the applicant’s marriage to his first cousin which, the father noted, was not allowed by the Macedonian Church. The father stated that several months after he made this threat he was reconciled with his son but stated that the applicant’s cousins also threatened to murder him. The father described the applicant’s [Relative A] as an ‘active gang member belonging to the Komiti gang operating all over Macedonia. [[Relative A]] is a convicted criminal in human and drug trafficking’. The father said that five other male cousins whose first names he gave also threatened to murder the applicant. He also said that the police could not guarantee his safety.
The Tribunal put it to the applicant that it seemed unlikely that [Relative A] could ask other members of Komiti to commit a crime (murder) against a person whom they may not know for something that is well in the past (over a decade since the unlawful marriage and over six years since it was ended). The applicant said that [Relative A] is very powerful.
The Tribunal asked the applicant is he had considered staying in Skopje (the capital) if he returned to Macedonia rather than going back to his hometown where his father and his relatives lived. The applicant replied that Skopje is the home base of Komiti so he could not stay there; and as for elsewhere, Macedonia was very small and Komiti travel all over.
The Tribunal asked if the applicant’s second marriage had been officiated in a church. He said it had taken place in the Serbian Orthodox Church. The Tribunal put it to him that was essentially the same church as the Macedonian Church and the applicant agreed; they are both autcephalic branches of the Eastern Orthodox Church. The Tribunal put it to him that in marrying him to his second wife, the church had, in effect, wiped out the problem of his first marriage. He was now in good standing with his church. The Tribunal put it to the applicant that he could dispel the anger against him if he let his family know that the episode with [Ms A] was long since over and he had remarried ‘properly’ (in their eyes). The applicant did not think he would be forgiven.
Very shortly after the Tribunal hearing, the applicant wrote with a correction. He said he and his second wife had actually had a civil wedding in Sydney officiated by a marriage celebrant, but had then gone immediately to the Serbian Orthodox church for a special ceremony and the priest’s blessing.
The Tribunal asked why, if news had spread from Australia to Macedonia in 2018 about his first marriage, news had not spread about his second marriage? He did not know the answer to this question. He said he himself had given news of the marriage and the child to his sister who lived in [Country 1] but apparently she has not shared it with her male cousins. His father had not told [Relative A] or the others about it.
The applicant also claimed in writing and at the hearing that the economic situation in Macedonia was poor and he would not be able to get a job. He needed to work because he had his young daughter to support.
Analysis, findings and reasons
The Tribunal finds that the applicant is a citizen of Macedonia and that Macedonia (or formally, the Republic of North Macedonia) is the receiving country in this case.
The Tribunal accepts that the applicant has lived for a long time in Australia: since 2012 when he came on a student visa and that he has returned to Macedonia only once in 2015 to visit his mother’s grave after she died the year before during his absence. The Tribunal accepts that he had a lawful marriage in Australia with his cousin [Ms A] in 2013 and that they were lawfully divorced in 2019 (also in Australia).
The Tribunal accepts that there is a societal stigma about marriages between cousins in Macedonia. This is derived from the fact that the Marriage Law of the country actually stipulates that first cousins cannot marry (see paragraph 21).
The Tribunal has had regard to the country information in the Laws of the Family 1992/80[1] and has read the document in full. It notes that the applicant’s wedding would not have taken place in Macedonia as the marriage registrars check to ensure there are no barriers to the marriage before it takes place[2]. As Macedonia only recognises marriages conducted by the civil registrar, church weddings by themselves do not provide a lawful marriage – the couple must also engage in the civil registry procedure with themselves, the registrar, two witnesses and a municipal official in order to receive the official marriage certificate[3]. The church ceremony is a recognition and blessing of the marriage. As the marriage between first cousins is not something that can take place in Macedonia, there are no punishments for it. In any case, the applicant’s first marriage was both contracted and terminated lawfully in Australia. It is of no concern to the Macedonian authorities nor to the Macedonian church. His second marriage can be registered in Macedonia if he were to return and it has been blessed by the church. The Tribunal is satisfied that the applicant is not of adverse interest to either the State or the church in regard to his marital status.
[1] As provided by the representative, marked as an ‘unofficial translation’. It appears to be a full text.
[2] Article 24
[3] Article 29
Given it is unlawful for first cousins to marry, the Tribunal can accept that his family were upset when they found out about it, albeit five years after it took place. However, the Tribunal is at a loss to understand why the applicant has not emphasised to his family that the marriage is over – that his divorce was finalised five years ago. Nor can it understand why he has not informed the family beyond his sister and his father that he has a new and completely acceptable marriage. His father reconciled to him within a few months of his first angry outburst and the applicant has offered no explanation as to why the broader family such as his male cousins would not also do the same.
The applicant asserted that his [Relative A], and to a lesser extent some other male cousins, would still wish to kill him – six years after they found out about the first marriage – because he (the applicant) brought shame on the family. The representative suggested that the situation was somewhat similar to the so-called ‘honour killings’ of certain countries but there is nothing before the Tribunal which supports any such contention. As noted already, the applicant has not provided his cousins with any updated information about how that ‘shame’ has been expunged by events – divorce and acceptable new marriage – in the last six years.
He asserts that [Relative A] is a criminal and will use a criminal gang called Komiti to assist him in harming the applicant. The Tribunal put it to the applicant, who agreed, that Komiti is a football-supporters club. The Tribunal is prepared to believe that there may be some anti-social, even criminal, elements within a football club: indeed, this is how ‘football hooligans’ got their reputation. However, the Tribunal is satisfied that Komiti is essentially an organised club of supporters of the team Vardar (both football and handball), based in Skopje (the capital of Macedonia) but who travel to their club’s matches across Macedonia and even to ‘away’ games in different European cities. The Tribunal notes that one can purchase Komiti football supporters’ paraphernalia (t-shirts etc) online at
The Tribunal is not satisfied that the applicant’s [Relative A] can mobilise ‘the criminal gang Komiti’ to harm the applicant. The Tribunal does not accept that Komiti as an entity is a criminal gang, nor that [Relative A] from a provincial town has a controlling role. These are mere assertions from the applicant with nothing whatsoever to support them.

The applicant said that after hearing about these threats from [Relative A] in 2018 he phoned the police station in Skopje to make a complaint and that he did not receive help. This is hardly surprising given that he was phoning from Australia about a threat that might happen in the future if he returned to Macedonia and that, in any case, was emanating from a provincial town and not actually in Skopje. The Tribunal does not find that the lack of assistance from the police on that occasion is indicative of the fact that the police are generally unwilling or unable to protect its citizens.
The applicant’s testimony is a series of unsupported assertions. He was unable to provide information about the flow of information between Australia and Macedonia. He asserted that he and [Ms A] kept their marriage totally secret for five years and information about it only came out when [Ms A] became vindicative about his new relationship, indicating that it was [Ms A] who had communicated the news. He has asserted that he is the object of murderous wrath on the basis of [Ms A’s] revelations in 2018 but has never explained why he has not countered this information with the news of his second and ‘acceptable’ marriage. He has asserted that his cousin is a criminal and can utilise a criminal gang into punishing the applicant, whereas the criminal gang is, in fact, a football supporters’ club. As noted earlier, this does not exclude it from having some criminals within its ranks, but it cannot be regarded as an organised gang structure which will do the bidding of someone higher in the ranks. There is no evidence about the [Relative A] other than an assertion from the applicant and his father that [Relative A] is a criminal.
The applicant has asserted that the Macedonian police won’t help him. The Tribunal accepts that they said there was nothing they could do about a query made by phone from the other side of the world, but it does not follow that they unwilling or unable to protect citizens within the country of Macedonia. The representative has submitted a Human Rights Report 2023 about Macedonia and although it mentions corruption in Macedonia, it does not support a claim that the police are corrupt and unable to provide normal police services. The representative has also submitted a 2018 report put out by Europe Western Balkan (a web portal focusing on reports of the development of the European Union’s enlargement policy) mostly focused on the country’s economic development: the tone of the report is mildly optimistic. The is nothing before the Tribunal that indicates that the economic situation in Macedonia is so dire that the applicant will not be able to subsist. He is a young healthy man who has worked for many years in Australia. He is a Macedonian citizen who speaks the language, has his father there, and has access to Government services.
In looking at all the evidence before it, the Tribunal is not satisfied that there is a real chance that serious harm will befall the applicant in Macedonia for reason of his ‘bringing shame on the family’ through an unacceptable marriage to his first cousin. As noted, that marriage was lawful when it was contracted in Australia and has now been lawfully terminated with divorce in Australia. The person who may have been most affected by any stigma or shame in the home town in Macedonia – the applicant’s father, his only surviving parent – was extremely angry when he first heard the news in 2018 and threatened to kill the applicant himself. However, the father was reconciled with the applicant only a few months later. It is implausible that other male relatives would continue to feel such outrage towards a person who has not lived with them for over 12 years, about an event which happened 11 years ago, especially if they were in possession of the facts about the applicant’s current non-controversial marital status.
The Tribunal does not find that the applicant has a well-founded fear of persecution. Even if he did – and the Tribunal is satisfied that he does not – it would not be for one of the five reasons specified in s 5J(1)(a) the Act. The applicant fears harm at the hands of his cousins: this is personal - the cousins think he has shamed the family. The representative suggested that the applicant may belong to a particular social group of ‘Macedonian first cousins who have entered a love marriage’. The Tribunal rejects this formulation noting that there is no such group because first cousins, by law, cannot marry in Macedonia and therefore there cannot be a large, cognisable group of them. Any other variation of particular social group involving victims of harm at family hands is also rejected because a particular social group cannot be constituted by persons bound only by fear of persecution. There is nothing before the Tribunal which indicates that familial killings or harm because of the breaching of certain church or societal rules is a known activity or pattern in Macedonia, or that it would be allowed to happen without police and judicial action.
The Tribunal is not satisfied that there is a real-chance of serious harm befalling the applicant in Macedonia in the reasonably foreseeable future. It is not satisfied that he has well-founded fear of persecution and therefore he does not fit the definition of refugee in s. 5H (1).
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). As the ‘real risk’ test under the complementary protection criterion imposes the same standards as the ‘real chance’ test under the refugee criterion[4], for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. The Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Macedonia, there is a real risk that he will suffer significant harm.
[4] MIAC v SZQRB [2013] FCAFC 33
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.
Sue Zelinka
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.
…

[2024] AATA 3976

24 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing