2119467 (Refugee)

2119467 (Refugee) [2023] AATA 4105 (21 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr M Shamraiz Mehdi
CASE NUMBER:  2119467
COUNTRY OF REFERENCE:                   Peru
MEMBER:Member Nathan Goetz
DATE:21 August 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

CATCHWORDS
REFUGEE – protection visa – Peru – threats made to family – member of a union in Peru – attended protests – claims were vague and lacking in detail – failed to attend hearing – significant delay in applying for protection – unable to make a decision favourable based on the material presented – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), 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 made on 21 August 2023 at 3:35pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.
The applicant was represented in the review by registered migration agent 1465452.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
BACKGROUND
The applicant identifies as a male citizen of Peru presently located in Australia.
On 11 May 2011 the applicant was offshore and granted a student visa to come to Australia. He arrived in Australia [in]June 2011 holding that visa. That visa ceased [in] February 2012.
On 19 April 2012 the applicant was onshore and granted a student visa. On 5 November 2014 that visa ceased. During the currency of that visa, the applicant departed Australia [in] March 2013 and returned to Australia [in]May 2013. He has remained in Australia since that date.
On 20 November 2014 the applicant was onshore and granted a student visa. On 7 September 2017 that student visa ceased.
On 26 October 2017 the applicant applied for the protection visa. On 27 October 2021 the applicant failed to attend an interview with the delegate to discuss his protection claims.
On 2 December 2021 the delegate refused to grant the applicant the protection visa.
On 19 December 2021 the applicant applied to the Tribunal for merits review of the decision. It is this decision that the Tribunal is considering.
On 2 August 2023 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing scheduled for 2 hours commencing at 1:30pm on 21 August 2023 at the Melbourne registry. The hearing invitation directed the applicant to complete and return a ‘Response to hearing invitation’ form by 4pm 9 August 2023. The applicant did not do so.
On 14 and 18 August 2023 the Tribunal sent SMS reminders to the mobile phone number the applicant provided as his contact phone number in his review application form. The messages were as follows:
Reminder - Your AAT hearing is on 21/08/23. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333
There is no evidence to suggest that the SMS messages were not sent, such as delivery failure message. There is no evidence that the applicant telephoned the Tribunal upon receipt of the SMSs.
On 21 August 2021 the applicant did not appear at the Tribunal hearing. The applicant provided the Tribunal with no explanation about why he did not appear at the Tribunal hearing.
Section 426A of the Act provides the Tribunal’s powers in circumstances where an applicant fails to appear at a Tribunal hearing.
The Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear at a Tribunal hearing: s 426A(1A)(a), or may dismiss the review application without further consideration of the review: 426A(1A)(b). The applicant was advised of these possibilities in the hearing invitation letter.
In determining the appropriate course, the Tribunal has considered the following factors.
·     First, the applicant did not attend an interview with the delegate.
·     Second, the applicant did not provide any evidence or documentation to the delegate subsequent to lodging the protection visa on 26 October 2017
·     Third, the applicant did not provide any evidence or documentation to the Tribunal subsequent to lodging the review on 18 December 2021
·     Fourth, the applicant did not complete and return the ‘Response to hearing invitation’ form
·     Fifth, the applicant did not provide any explanation for why he could not appear at the Tribunal hearing as scheduled.
·     Sixth, the protection visa application was lodged almost 6 years ago.
The Tribunal determined that the applicant’s lack of engagement in the protection visa application process, and the review application process, in the context of the lengthy period between the applicant applying for the protection visa at the listing of the Tribunal hearing, meant that the Tribunal should determine the review forthwith to avoid any further delay in the matter coming to a determination. The Tribunal is satisfied that the applicant had sufficient notice of the Tribunal hearing.
Accordingly, the Tribunal determined that the correct or preferrable decision was to make a decision on the review without taking any further steps to allow or enable the applicant to appear at a Tribunal hearing: s 426A(1A)(a) of the Act.
The Tribunal waited until the end of the allocated Tribunal hearing time before it made a decision on the review.
CONSIDERATION OF CLAIMS AND FINDINGS
The issue in this case is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection’ or a member of the same family unit of a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’
The Tribunal invited the applicant to appear at a Tribunal hearing because the Tribunal was unable to make a decision favourable to him based on the material it had.
The applicant was on notice of this because this is explicit in the hearing invitation letter. It would be obvious to the applicant that in the absence of further material, the Tribunal would not be persuaded that the applicant met the requirements for the grant of a protection visa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
There is no DFAT Country Information Report on Peru.
Identity and country of reference
In the protection visa application form, the applicant identifies that he was born in Arequipa, Peru on [DOB]. He provided a copy of his Peruvian passport issued [in] February 2017 and expiring on 28 February 2022 in support of his identity. The applicant claimed Peruvian citizenship and did not claim to have any other citizenship, or the right to enter and reside in any other country.
On the basis of the passport, and the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Peru who does not hold any other citizenship or right to enter and reside in any other country.
Therefore, the country of reference for the purpose of the protection visa assessment is Peru.
Member of the same family unit
In the protection visa application form, the applicant declared that there were no members of his family unit included in the protection visa application. He declared that he was making his own claims for protection.
Based on this concession by the applicant, and in the absence of any evidence to the contrary, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who is a ‘refugee’ or satisfies the requirements for ‘complementary protection.’
What the applicant claims he thinks will happen to him if he returns to Peru
In the protection visa application form, the applicant claimed that since his arrival in Australia, ‘there were series of ongoing threats made to my family.’
The applicant wrote that he was ‘relieved to leave Peru and arrive in Australia to be able to get away from that situation.’ The applicant claimed that he had ‘strong reasons to fear more threats, attacks and physical harassment upon my return to Peru.’
The applicant claimed that it was because he had ‘received constant life threats and has been a victim of an attack in Peru’ that he left that country. The applicant wrote that he arrived in Australia on a student visa in April 2011 and had only been able to return to Peru for four days during the last six and a half years.
The applicant wrote that he did not think that the authorities in Peru could and would protect him if he returned to that country. He believed this because ‘police (have) constantly distanced themselves from the issues. We believe (this is) due to political reasons and sometimes the police is found to be directly involved in providing support to people with political influence.’
Despite this, the applicant claimed that there is a ‘registered police complainant made against them. The criminal proceedings took place, and the judge ordered their arrest, however no progress has been made by the police.’
‘Them’ appeared to be ‘a group of people causing serious injuries’ to the applicant in September 2005, as detailed in the protection visa application form concerning ‘experiences of harm in Peru.’ The applicant claimed that he was employed by the Peru Ministry of [department]as administrative staff and became a member of the [Organisation 1] where he ‘regularly recorded his protests.’ The applicant wrote that has ‘since received series of life threats and had to leave Peru in 2011 to avoid more threats.’
The applicant wrote that he later found out that ‘the attackers were members of a terrorist organisation with links with part of the government.’ He believed that they were released despite being arrested because of ‘political influence.’
In the protection visa application form, the applicant declared that he resided at one address in Peru in Arequipa from October [year] (his birth) until January 2011. The Tribunal observes that the applicant’s migration history is that he arrived in Australia in June 2011 and the Tribunal is satisfied that the applicant’s claim that he resided at the Arequipa address until June 2011 is a mistake.
The Tribunal is satisfied that the applicant meant to write that he resided at that address until June 2011, because in the same form, the applicant claimed to live in an address in Sydney from February 2011. The applicant did not claim to have moved or tried to move to another part of Peru to seek safety because ‘We have been living in Arequipa for generations. Leaving the city and moving to another city is not an option. It is not practical to me to leave our home, lands and all the family relatives and move to another city.’
The Tribunal’s assessment of the applicant’s protection claims is that they are vague and lacking in the meaningful detail that it would be reasonable to expect to accompany a person’s account of their own lived experiences.
The applicant did not identify where it was in September 2005 that he was attacked, nor detail the ‘serious injuries’ he claimed to have received. The applicant did not detail how it was that he ‘received a serious of life threats.’ He did not identify how many attackers he had or detail their identity. The applicant did not provide evidence about how he ‘came to know’ that the attackers were members of a terrorist organisation, nor identify the terrorist organisation he claimed they were a part of. He provided no medical evidence to corroborate his claimed ‘serious injuries’ or membership of the union.
Further, the applicant provided no details of the process he went through making a complaint to the police, or any documentary evidence to demonstrate that he had made a complaint to police as claimed. The applicant also provided no explanation to the Tribunal about the illogicality of suggesting that the police would not protect the applicant when the applicant’s own evidence was that the police took a complaint and charged his attackers. The applicant provided no detail about when his claimed attackers were released from jail or how he came to know this. He provided no specific details of his ‘protests.’
The Tribunal is not satisfied that the applicant was a member of a union in Peru, that he protested in Peru and was harmed by any person or group. The Tribunal is not satisfied that the applicant or his family were threatened. The Tribunal is not satisfied that the applicant complained to police about his assault. The applicant’s claims were vague and lacking in detail. The Tribunal is not satisfied that there is any truth to those claims.
The Tribunal is comfortable making this finding when considering the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
Timing of the protection visa application in the context of the applicant’s migration history and despite claimed fear of harm in Peru
The applicant has been in Australia since June 2011. If his claims were to be believed, he was ‘attacked’ in 2011 in Peru. However, despite this attack occurring in the same year of his arrival in Australia, he did not apply for a protection visa shortly after his arrival in Australia. He did not apply for a protection visa when his student visa cased in February 2012, but instead applied for another student visa.
When that visa ceased on 5 November 2014, once again he did not apply for a protection visa and instead applied for another student visa. It was not until student visa granted on 20 November 2014 ceased in September 2017 that the applicant applied for a protection visa the following month.
The Tribunal was curious about why the applicant would not lodge a protection visa shortly after his arrival in Australia in June 2011, if his protection claims about the past harm he experienced in Peru were true. Student visas are temporary visas which require a person to return to their home country. The Tribunal found it odd that the applicant would arrive in Australia, having experienced the harm he claimed to have experienced in Peru, and instead of applying for a protection visa which would allow him to permanently settle in Australia and be safe, the applicant would instead apply for another two student visas which all required him, bar some other visa being granted, to return to Peru.
The applicant provided the Tribunal with no evidence about any particular event that made him fearful of returning to Peru in September 2017.
The Tribunal is satisfied that the applicant’s delay applying for the protection visa demonstrates that he does not have a genuine fear of harm in Peru due to his race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal is also satisfied that the applicant’s delay applying for a protection visa demonstrates that he does not genuinely fear that there is a real chance he will suffer significant harm in that country. The Tribunal is satisfied that if the applicant genuinely held any fear that he would be harmed in Peru, he would have applied for the protection visa shortly after his arrival in Australia in 2011. The applicant would not have delayed lodging the protection visa for approximately six years.
The Tribunal is comfortable making this finding when considering the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
Return to Peru despite claimed fear of future harm in that country
The applicant declared in the protection visa application form that he had returned to Peru since his initial arrival in Australia in 2011. He identified that he was in Peru between 19 and 29 April 2013 and that the purpose of the trip was to visit family.
The applicant provided no explanation about why he could and would return to Peru in 2013 despite an assault in September 2005 and resulting threats being made against him and his family being a reason he could not return to Peru in 2017 when the protection visa was lodged. The applicant also provided no evidence about whether he experienced any harm during that trip. All the applicant provided was that he returned to Peru for a family trip and that he could only stay four days.

The Tribunal was curious why the applicant would voluntarily return to a country where he now claims he faces a real chance of harm. The applicant provided no explanation about why he did so, nor provided any explanation about why he could not do so again (if, for example, he did not experience harm during that last trip).
The Tribunal is satisfied that the applicant’s voluntary return to Peru in 2013 demonstrates that he goes not have a genuine fear of harm in that country due to his race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal is also satisfied that the applicant’s voluntary return to Peru un 2013 demonstrates that he does not genuinely fear that there is a real chance he will suffer significant harm in that country. The Tribunal is satisfied that if the applicant genuinely held any fear that he would be harmed in Peru, he would not have voluntarily returned there in 2013.
The Tribunal is comfortable making this finding when considering the other concerns that the Tribunal has about the applicant’s credibility as detailed in this decision record.
CONCLUSION
It is not the Tribunal’s job to make the applicant’s case for him. It is the task of the applicant to provide as much detail as necessary to make out his protection claims so that the Tribunal can be satisfied that the applicant is a person to whom Australia has protection obligations. Just because the applicant claims to be owed protection in Australia does not establish the truth to the protection claims, or the truth of the factual basis for the applicant’s claims.
In the present review, the combination of the vague details lacking in specifics, together with the applicant’s migration history in Australia and the timing of the protection visa application, demonstrate to the Tribunal that the applicant’s claims have been manufactured in their entirety and have been fabricated in order for the applicant to be granted a protection visa. The Tribunal is not satisfied that there is any truth to the claims and rejects the factual basis and claimed fear of harm in Peru in their entirety.
The Tribunal is not satisfied that the applicant has previously been harmed in Peru, that he left Peru because he experienced past harm and was fearful of future harm, or that the reason the applicant now claims that he cannot return to Peru is due to his experience of past harm or fear of future harm. The Tribunal is satisfied that the applicant has lodged the protection visa to remain in Australia for reasons not connected with Australia’s protection obligations.
Refugee
For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Peru due to his race, religion, nationality, membership of a particular social group, or political opinion. Therefore, the applicant is not a person to whom Australia owes protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Peru, there is a real risk the applicant will suffer significant harm. Therefore, the applicant is not a person to whom Australia owes protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act. Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz

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 4105

21 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Natural Justice