2117965 (Refugee)

2117965 (Refugee) [2024] AATA 4196 (28 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Jessica Williamson
CASE NUMBER:  2117965
COUNTRY OF REFERENCE:                   Peru
MEMBER:Andrew Verduci
DATE:28 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first and second-named applicant satisfies s 36(2)(aa)of the Migration Act; and
(ii)that the third-named applicant satisfies s 36(2)(c)(i)of the Migration Act, on the basis of membership of the same family unit as the second-named applicant.

Statement made on 28 August 2024 at 1:11pm
CATCHWORDS
REFUGEE – Protection Visa – Peru – an abuse survivor – mental and physical health – being in an abusive defacto relationship – ex-partner’s family have shown an ongoing persistence in targeting the first and second-named applicant – a member of particular social group – women who have experienced family violence – there is a real risk the applicant will suffer significant harm – membership of the same family unit – decision under review remitted

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
BACKGROUND

The first-named applicant is a [age]-year-old female citizen of Peru. The second-named applicant is her daughter, a [age]-year citizen of Peru. The third-named applicant is a citizen of [Country 1] and is the defacto partner of the second-named applicant.
The second-named applicant arrived in Australia on [date] November 2017 holding a Tourist visa. The first and third-named applicants arrived together on [date] January 2018, also holding Tourist visas. They lodged a combined application for a Protection visa on 5 February 2018.
Protection visa application
The information and answers given in their Protection visa application can be summarised as follows:
·The first-named applicant was born and lived in Lima, Peru. She has two children, including the second-named applicant. A son lives in Peru. Her parents are deceased, as is her partner. She completed secondary school and worked at a [workplace] in Peru as a [occupation] between 1997 and 2017.
·The second-named applicant was born and lived in Lima, Peru. Her father is deceased and her brother lives in Peru. She has been in a de-facto relationship with the third-named applicant since October 2015. She has half-siblings living in Peru. She completed secondary school and a [Certificate], and was employed in a [role] between 2007 and 2013 and as a [occupation] from 2013 to 2017.
The first-named applicant was in a defacto relationship with man. I will call him M.W.
According to their written visa application, M.W. was married to another woman but was in a long term defacto relationship with the first-named applicant. M.W. was abusive and controlling towards the applicants. On a particular day in 2016, M.W. attacked the first-named applicant with a knife in their family home. She was injured but escaped and was assisted by a neighbour. The police were called and forced entry into the first-named applicant’s home. They found M.W. deceased, having committed suicide inside the house.
It is said that M.W.’s family blame the first and second-named applicant for his death and for the shame it has paced upon them. After M.W.’s death, the first-named applicant claims to have been pushed down some stairs by members of M.W.’s family, and the second-named applicant claims that she was hit by a car being driven by members of M.W.’s family.
There are additional claims of threatening calls, messages and emails.
The third-named applicant only claims to be a member of the same family unit as the first and second-named applicant and did not give his own reasons to fear being harmed in Peru.
The applicants attended an interview with a delegate of the Minister for Home Affairs. I have listed to a complete audio recording of this interview.
The delegate accepted that their may be a level of animosity between the families after M.W.’s death but did not accept that the applicants were threatened and would be in danger from M.W.’s family if they returned to Peru.
Application for review
The applicant applied for a review of the delegate’s decision with this Tribunal on 5 February 2018. Their application for review was only constituted to me in July 2024, but the overall length of time it has taken for their application to be considered by this Tribunal is regrettable.
The applicants appeared before me in person on 16 August 2024. They were represented in relation to the review, and their representative also attended the hearing. The hearing was also conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
Evidence and submissions given pre and post hearing
I have been greatly assisted by the evidence and submissions given before and after the hearing. This includes, but is not limited to:
·Written statutory declarations
·Medical letters and reports
·A witness letter written by the first-named applicant’s niece in Australia
·Documents from the Public Ministry Prosecutor’s Office with English translations
·Letter of appointment from the Administrative Resolution of the Judicial Branch’s General Management with English translation
·Court documents issued in the Lima Family Court with English translation
·News reports and English translations
·Photographs of the second-named applicant
·Copies of text messages and emails with English translation
·A USB stick with two video clips of news reports and audio in a language other than English.[1]
[1] The shorter of the two video clips was played to me during the hearing on a laptop with the audio translated in real time into English with the assistance of the available interpreter.
Much of this evidence was not available to the delegate and has been given to me for the first time. Having reviewed the Department file and listened to the audio recording of the delegate’s interview, I am prepared to accept that the applicants gave this evidence to their then representative with the understanding it would be submitted for the delegate’s consideration. For reasons unknown to the applicants and me, the evidence and information does not appear to have been given to the delegate. I find that there is a reasonable explanation for this evidence being given to me after the delegate’s decision and I do not draw an unfavourable interference because it was not given sooner.
Additional time was allowed after the hearing so that further evidence and submissions could be provided. A request for an extension of time was then received because the first-named applicant is experiencing health issues and has been hospitalised. I have reflected on the material that is going to be provided and whether it is reasonable to adjourn the review. As I am now able to make a decision favourable to the applicants based on the material before me, I have declined to exercise my discretion to adjourn the review any longer.
Health considerations
I have had regard to and place some weight upon the medical evidence regarding the first-named applicant’s mental and physical health. As explained further below, I accept this evidence is consistent with her lived experience as an abuse survivor. I have reflected on how the hearing was conducted, including my lines of questioning during the hearing and the manner in which my questions were asked. I have reflected on my offer for the first-named applicant to be excused from the hearing room when viewing the video footage to reduce her exposure to further trauma, but also her desire to ‘be strong’ and to view the footage herself for the first time. I have also reflected on the multiple breaks taken throughout the hearing to reduce the emotional and cognitive fatigue associated with giving evidence in a Tribunal context.
Oral evidence from a witness
I was asked to take oral evidence from the first-named applicant’s cousin during the hearing. I elected not to do so for the following reasons. The prospective witness gave a written statement prior to the hearing and I had the benefit of considering the evidence she would give. To the extent that the witness would give evidence about matters she experienced firsthand when in Peru, in particular the violence occurring in January 2016, I already accept her evidence about those matters. To the extent her evidence is about other matters, her written statement explains that her knowledge is based upon what the first and second-named applicant have told her about those events. In other words, she lacks a firsthand knowledge or experience of those events. I therefore accept that her oral evidence will have been consistent with her written statement and the other claims being raised before me, but I would have placed less weight on this part of her evidence because it was not based on her first-hand knowledge of events.
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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
There is no DFAT country information assessment for Peru at the time of making this decision.
CONSIDERATION OF CLAIMS AND EVIDENCE
I accept that the first and second-named applicants are citizens of Peru and that Peru is their receiving country. On the available evidence, I am not satisfied that s 36(3) of the Act applies in relation to either of them.
The third-named applicant is a citizen of [Country 1] and I find that [Country 1] is his receiving country. It is unnecessary to consider the application of s 36(3) to the third-named applicant because I am not finding that Australia has protection obligations to him under s 36(2)(a) or (aa) of the Act.
I am also satisfied about the applicants’ identity and find that their identities are as claimed.
Relationship with M.W. and incidents of past harm
I accept that the first-named applicant was in a long term defacto relationship with M.W. The second-named applicant is the biological daughter of the first-named applicant and her defacto partner.
The available evidence demonstrates a history of violence carried out by M.W. against the first-named applicant. I accept that the first-named applicant previously sought protection from authorities in Peru which eventually resulted in a Protective Measure order being granted in her favour in, or around, October 2015. That order was ineffective in preventing further violence and help was sought to enforce the order later that same year.
The evidence suggests that the first-named applicant continued living with M.W. and continued to face abuse from him.
I accept that a particular incident occurred on, or around, the date of the first-named applicant’s birthday. M.W. became abusive and stabbed her with a knife. She was injured but managed to flee the house and seek assistance from a neighbour. When police arrived, her defacto partner was locked inside their family home. When police gained entry to the house, they found M.W. deceased. He is described as having stab wounds and is reported to have committed suicide by hanging himself. The first-named applicant sustained stab wounds to her neck and was hospitalised for a length of time following the attack. There is independent, credible open-source reporting about this event which I have been provided and is contained within the Tribunal’s file.
I have viewed two video clips containing live news reporting of this event. They are in a language other than English, but the audio in one clip was interpreted by the interpreter during the hearing. Even without the audio, the video footage shows a crime scene, the faces of the first and second-named applicant and a plaque with an address that is consistent with where the applicants say that they lived. I accept this evidence is genuine and depicts the events as described.
It is clear from this evidence that the first and second named applicants have experienced traumatic life events that ended with the M.W.’s death. I have reflected on the trauma of these events as I have considered the totality of the applicants’ evidence.
Following M.W.’s death, I accept that there was a degree of animosity between members of M.W.’s other family and the applicants. The evidence before me demonstrates a history of correspondence in 2017, 2018 and 2022 that includes threats and abuse towards each other. There seems a long period after 2018 where no threat or communication was made, at least none which is evidence before me, until a threatening email is then sent to the applicants in 2022. The time gap between 2018 and 2022 is curious and there is no satisfactory explanation about the intervening period.
I also accept that the first-named applicant was pushed down some stairs in August 2016. Although I am concerned about inconsistencies in her evidence, such as whether she was attending a psychiatric appointment or working at the time, my concerns are outweighed by the general consistency of her evidence, my acceptance of her being in an abusive defacto relationship and the trauma she has lived through, as well as the general passage of time since the events are said to have occurred. Accordingly, I accept that she was pushed down stairs whilst at [a location] by relatives of M.W. I also accept that during this incident she suffered three broken ribs and head trauma and was hospitalised for about one month.
I also have some concerns about the second-named applicant’s car accident in 2017, but I cannot conclude with confidence that it did not occur as claimed. Whilst there is a degree of implausibility about her claim to have been hit from behind by a car whilst walking on a footpath, there is some evidence in the way of photographs showing bruises to her body which lead me to give her the benefit of the doubt. I therefore accept that she was hit and injured by a car being driven by, or having in it, M.W’s relative(s).
Real chance of serious harm or real risk of significant harm
I have carefully reflected on whether these accepted facts give rise to a real chance of serous harm or a real risk of significant harm now or in the reasonably foreseeable future. On balance, I conclude that they do.
M.W.’s family have shown an ongoing persistence in targeting the first and second-named applicant, characterised by threats and actual bodily harm. It is more than mere speculation to consider that they have the willingness and means to continue or escalate their actions if the applicants return to Peru.
In making this finding, I place some weight upon [Ms B], M.W’s daughter from his other family, being a [position] in [a] Court. A search of open source information reveals little about what the role of a [role] [does].[2] Beyond that, I cannot discount the possibility that such a role gives her access to information about the applicants, such as whether or not they are in Peru and/or an address registered with any of their national identity cards.
[2] [Deleted]
If the applicants return to Peru, it is at least plausible that members of M.W.’s other family will know or find out and will resume their attempts to harm the applicants. In these circumstances, I find that there is a real chance and a real risk of the applicants being harmed physically and emotionally. Reflecting on their experiences of past harm, I find that this is a real chance of serious harm and a real risk of significant harm within the meaning of the Act.
Not for a refugee reason
I do not accept that the applicants have been or will be targeted for any other reason aside from a personal dispute between M.W.’s two families. It is a curiosity for me why so much time and effort has been spent trying to suggest otherwise. It is fanciful to suggest that an essential and significant reason for their harm is because they are women in Peru and/or are women who have experienced family violence.
It goes without saying that the first and second-named applicants are women in Peru and/or women in Peru who have experienced family violence. The evidence, however, does not support a conclusion that this an essential and significant reason for the threat of harm that they face.
This is supported by the English translation of the text messages and emails that I am provided with which contain, in part, the following exchanges:
·…give back what is not yours…
·…give us the part that corresponds to us from my father’s assets…
·Don’t play dumb that you and your mother have tried to keep the things and this won’t stay this way we want the house that corresponds to us
·I want you to give us the money of the car that also corresponds to us
·You took my house, you did what you wanted with it, you fucking piece of shit.
In this case, any threat of gender-based violence against the first and second-named applicant ended with the death of [M.W.] may or may not have a problem with femicide and violence against women and girls in general, but there is nothing before me that suggests that this is the motivating factor for M.W.’s family. M.W.’s two families have been known to each other over a very long period of time and, whilst they might not have shared Christmas together, for example, there is no evidence of animosity arising prior to M.W.’s death. Similarly, I do not accept that the abuse towards the first-named applicant carried out by M.W. would have been a secret within the respective families, or that the first-named applicant’s reporting of abuse and subsequent protective orders would not have been known to M.W.’s other family either. These further strengthen my conclusion that the catalyst for the dispute was M.W.’s death, the public reporting of his death and a subsequent disagreement regarding property.
Nor do I accept that there would be a discriminatory withholding of protection for a refugee reason. Whilst the applicants may dispute the effectiveness of the available protection measures in Peru, their own evidence demonstrates a willingness by authorities to take some action in relation to domestic and gender related violence. This includes being given assistance by the Ministry for Women, receiving counselling support and finally a Protective Measures order in October 2015.
The country information that is available to me, including what is set out in the applicants’ written submission dated 9 August 2024, does not persuade me otherwise.
As the harm feared is not for an essential and significant reason in s 5J(1)(a) of the Act, I am not satisfied that the applicants have a well-founded fear of persecution within the meaning of s 5J(1). Accordingly, I am not satisfied that the applicants satisfy the criteria in s 36(2)(a) of the Act.
Complementary protection

I have already found that the first and second-named applicant face a real risk of significant harm if returned to Peru. I am not satisfied that an exception in s 36(2B) applies.
Although I place some weight upon the first and second-named applicants having a family member living in [Lima], and also owning an apartment in [Lima], I find that relocation is not reasonable in all of the circumstances.
I accept that there is a risk of M.W.’s family members, particularly [Ms B], finding out that the applicants have returned Peru and are living in [in] Peru. Any address will need to be registered for the purposes of an identify card which means that information about their address is likely to be digitally stored and therefore available to certain other people. There is a risk of it being accessible to [Ms B] which will result in a risk of physical, mental and/or emotional harm being inflicted upon the first and second-named applicant.
The first-named applicant’s age and lived experience as an abuse survivor also make relocation a difficult and unreasonable prospect for her. Whilst she could relocate with the second-named applicant, her daughter’s need to work and support them both is a factor I place some weight upon. I also place weight upon the third-named applicant’s inability to return to Peru, noting that he is citizen of [Country 1] and no longer has the right to permanent residency in Peru. It is possible he may acquire a right to enter and reside in Peru at some stage in the future, but there will be a period where the first and second-named applicants would be returning without his support. It would be unreasonable to require the first and second named applicant to live separately in Peru and I also find that it is unreasonable for the two of them to relocate together, particularly without the support of the third-named applicant.
Accordingly, I am not satisfied that it would be reasonable to relocate to an area of Peru where there would not be a real risk of suffering significant harm.
The first-named applicant has lived experiences seeking protection from the authorities in Peru. The evidence suggests to me that protection has not been denied or withheld in the past, but the prolonged period of abuse from M.W., the ongoing presence of threats, harassment and harm from his family following his death and the appointment of [Ms B] as a [role] lead me to find that protection from the authorities will be ineffective now and in the reasonably foreseeable future. I find that they cannot obtain protection within Peru such that there would not be a real risk of significant harm.
Finally, the real risk is one faced by the applicants personally and not by the population of Peru generally.
Accordingly, I am satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first and second-named applicant being returned to Peru, there is a real risk that each of them will suffer significant harm.
Member of the same family unit
The third-named applicant has applied for a Protection visa on the basis of being a member of the same family unit as the first and second-named applicant.
I find that the applicants have been consistent in their evidence about their family unit. The second and third-named applicants have consistently identified as being in a defacto relationship that commenced in October 2015. I accept that the second-named applicant travelled to Australia first and was then followed by the first and third-named applicant who travelled together.
I am satisfied that the third-named applicant is the defacto partner of the second-named applicant, and that the third-named applicant is a member of the second-named applicant’s family unit for the purposes of reg 1.12 of the Migration Regulations 1994 (Cth) (the Regulations). I am further satisfied that he also a member of the same family unit of the second-named applicant within the meaning of the definition in s 5 of the Act.
Summary
I am satisfied that the first and second-named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa) of the Act.
I am also satisfied that the third-named applicant is a member of the same family unit as the second-named applicant for the purposes of s 36(2)(c)(i) of the Act. As such, the fate of his application depends on the outcome of the first named applicant’s application.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first and second-named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii) that the third-named applicant satisfies s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the second-named applicant.
Andrew Verduci
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 4196

28 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

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