2204633 (Refugee)

2204633 (Refugee) [2022] AATA 2225 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Ibrahim Safi (MARN: 1464015)
CASE NUMBER:  2204633
COUNTRY OF REFERENCE:                   Afghanistan
MEMBER:Sean Baker
DATE:11 May 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 11 May 2022 at 9:16pm
CATCHWORDS
REFUGEE – Protection visa – Afghanistan – social group – women – no male protection – potential forced marriage to uncle’s creditor – arrival in Australia as a minor – credibility issues due to actions of stepfather – current situation in Afghanistan – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 May 2020 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 Afghanistan, applied for the visa on 22 September 2017. The delegate refused to grant the visa on the basis that the delegate did not accept the applicant’s claims about her past life or reasons for fearing harm on return to Afghanistan. The delegate did accept that the applicant is a young woman from Afghanistan.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for one of the enumerated reasons on return to Afghanistan or, if not, whether there is a real risk she will suffer significant harm on return to Afghanistan. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
In summary, the applicant claims that she is a national of Afghanistan, that she is of Tajik ethnicity and a Sunni Muslim. She claims to have been born and educated in Kabul.
She lived with her parents until her father passed away in 2005 when she was approximately [age] years old. After the death of her father, she lived with her paternal aunt as was customary. She visited her mother a few times each year. When her mother married [Mr A] in 2015, the applicant travelled with them to Australia in 2016. This was always intended to be temporary.
She returned to Afghanistan when her aunt became sick. Her uncle made a plan for her to be married to one of his creditors. Her aunt was not happy with this plan but would have gone along with it. The applicant did not wish to marry this man so she contacted her mother who arranged for the applicant to travel back to Australia.
If she is forced to return to Afghanistan, she will be forced to marry a man she hardly knows and who is much older than her. She will have no choice in the matter. The government of Afghanistan condones forced marriage and will not protect her. She does not have anyone else she can turn to for protection.
As a young woman in Afghanistan, it is impossible for her to live alone and with no family, nowhere to live, and no way of supporting herself, she would be in great danger of all forms of abuse.
The applicant provided a number of documents to the Department:
·Afghanistan/UNICEF Vaccination Certificate in the name: [Name 1], DOB: [deleted] (translation provided)
·Afghanistan Birth/Identity Certificate (Taskera), number [deleted] in the name: [given name of Name 1], DOB: as per her family’s statement [age] years of age in 1384 (translation provided)
·Afghanistan Birth/Identity Certificate (Taskera), number [deleted] in the name: [applicant’s given name], DOB: determined to be [age] years of age in 1395 (translation provided)
·Afghanistan Marriage Certificate in the names: [two names deleted] (translation provided)
The applicant was interviewed several times by the Department. The above documents were examined by the document examination unit.
The Department also undertook an examination, which resulted in information suggesting that the applicant had used the identity of her claimed stepfather’s son, [applicant’s name], who was born in [another country] in [year] in order to be granted a visa and travel to Australia.
On the basis of this information the Department disbelieved all of the claims of the applicant, apart from the fact that the applicant was a young Afghan woman, and went on to affirm the decision on this basis.
Having carefully considered the information the delegate had before them (including the information placed under a purported s 438 certificate), I consider that this information does not indicate a demonstrated lack of credibility on the part of the applicant, nor of her core claims – being cared for by an aunt, and her uncle wishing to have her married to a business creditor. The inconsistencies in the evidence of the applicant revolved around her relationship with her claimed mother and stepfather, and the process of her travelling to Australia, returning to Afghanistan and then to Australia again. It is important to note that these events occurred when the applicant was a minor, and that the inconsistencies in the evidence provided by the applicant and her claimed mother all related to events which occurred when the applicant was a minor. No consideration appears to have been given to the well-documented research on the capacity of children to give consistent evidence.
The applicant has now provided information which confirms that the relationship with her claimed mother and process by which she was able to travel to Australia were contrived. In information provided to the Tribunal she states that her parents died when she was young, and her aunt raised her. The applicant suffered physical and sexual abuse from her uncle. Her aunt paid a significant amount to [Mr A] to smuggle the applicant to Australia. He was never her guardian and in effect operated as a people smuggler. It is claimed that he had the applicant returned to Afghanistan fearing his position [would] be compromised. On return to Afghanistan, the applicant learned that her uncle was going to marry her to one of his creditors. Her aunt then arranged for the applicant to return to Australia. The applicant and her claimed mother could not reveal to the Department the true situation in relation to [Mr A] as they were afraid of the implications this would have for them. The applicant has no evidence of her intended marriage in Afghanistan as the agreement between her uncle and his creditor was oral. The applicant has been seeing a psychologist and has poor mental health.
Country information
I have considered independent country information from a range of sources.
Following 20 years of insurgency, the Taliban took control of Kabul and almost all of the rest of Afghanistan on 15 August 2021 and declared an Islamic Emirate of Afghanistan. International forces departed and aid money directly to the previous Afghan government stopped, and many of the assets of the previous Afghan government were frozen overseas.
The economy is in crisis and close to or in collapse and food shortages have been widely reported. Much of the population suffers acute food insecurity[1] The Taliban set up an ‘interim government’ in September and October 2021, with the announcement of some 88 appointments across 30 ministries. The occupants of these positions are mostly Pashtun and chiefly long-serving Taliban commanders with little relevant government experience. There are no women among them and few representatives of ethnic minorities.[2]
[1] UN High Commissioner for Refugees (UNHCR), UNHCR Guidance Note on the International Protection Needs of People Fleeing Afghanistan, February 2022, available at: DFAT Thematic Report Afghanistan - Political and Security Developments August 2021 to January 2022 (14 January 2022).
Despite statements to the contrary from Taliban leaders including Sirajuddin Haqqani, leader of the HQN and deputy leader of the Taliban, there have been waves of killings of journalists, human rights activists, judicial workers, doctors and clerics.[3] Whilst the takeover by the Taliban means there has been a reduction in mass casualty attacks perpetrated by the Taliban, Islamic State in Khorasan Province (ISKP) has perpetrated mass casualty attacks since August 2021. While indiscriminate attacks by the Taliban and elements associated with it have reduced, there are concerns about ongoing targeted violence and serious human rights violations by the Taliban and its affiliates.[4] The relative peace may be further frayed if the economic situation worsens or the unstable network of alliances of groups pledged to the Taliban becomes unstable.
[3] DFAT Thematic Report Afghanistan - Political and Security Developments August 2021 to January 2022 (14 January 2022).
[4] UN High Commissioner for Refugees (UNHCR), UNHCR Guidance Note on the International Protection Needs of People Fleeing Afghanistan, February 2022, available at: >
UNHCR and others have highlighted the widespread human rights violations in Afghanistan, giving rise to an increase in the need for international protection for people fleeing Afghanistan, including, inter alia, women and girls as well as ethnic and religious minorities.[5]
[5] UN High Commissioner for Refugees (UNHCR), UNHCR Guidance Note on the International Protection Needs of People Fleeing Afghanistan, February 2022, available at: >
Since the Taliban took control, women have been removed from public roles, secondary schools for girls have been closed, and despite some statements to the contrary, most observers believe women and girls will be placed back in the same position as that under the previous Taliban government with no real access to human rights other than through a male relative.
This has led DFAT to assess that women in Afghanistan, regardless of ethnicity or socio-economic status, face a high risk of official discrimination and a high risk of societal discrimination as well as a high risk of gender-based violence, including sexual assault and domestic violence, while Afghan girls face a high risk of being forced into early or involuntary marriage.[6]
[6] DFAT Thematic Report Afghanistan - Political and Security Developments August 2021 to January 2022 (14 January 2022).
DFAT further assesses that women face a high risk of harassment and violence from the Taliban if they depart from traditional female roles, and DFAT assesses that any restraint shown by the Taliban towards women challenging their authority or interpretation of Sharia could end at any time; DFAT assesses that the situation of women in Afghanistan, with regards to access to employment, education and healthcare services, is precarious; such access that exists may be altered or withdrawn by the Taliban with little warning or reason given.[7]
[7] DFAT Thematic Report Afghanistan - Political and Security Developments August 2021 to January 2022 (14 January 2022).
This prediction was prescient, with recent reports on the Taliban’s last-minute winding back of any access to education girls may have had after sixth grade,[8] and increasing requirements for women and girls to wear the most restrictive form of Burqa and have a male chaperone anywhere outside the home.[9]
[8] Ahmadi, B., ‘Taliban’s Ban on Girls’ Education in Afghanistan’ United States Institute of Peace, 1 April 2022.
[9] O’Donnell, L., ‘The Taliban Have Made the Burqa Mandatory Again’, Foreign Policy, 9 May 2022, Kumar R., Noori H., ‘Afghan women deplore Taliban’s new order to cover faces in public’, Al Jazeera, 8 May 2022,
Prior to August 2021, as an insurgency, the Taliban targeted Afghans working for, supporting or associated with the then Afghan government and international agencies. Such people were subject to intimidation, threats, abduction, and targeted killings.[10] Despite a claimed amnesty for such people form the Taliban, there have been credible reports of assassinations and other harm visited on members of the former security forces, the arbitrary detention of civilians who worked for previous administrations and their family members and the killing of former Afghan interpreters and other locally-engaged personnel who assisted US or other allied forces.[11] Such reports led DFAT to assess that former security forces, as well as former government officials who were openly critical of the Taliban or harmful to Taliban interests (such as judges or police responsible for imprisoning Taliban soldiers) are also at moderate to high risk of unwanted attention, detention, harassment and violence, while ordinary and/or technical government officials were assessed to be at low risk of adverse Taliban attention.[12] However, this later assessment appears in doubt given investigations and credible reports of widespread, ubiquitous killings and disappearances of former government officials of all levels.[13]
[10] DFAT Thematic Report Afghanistan - Political and Security Developments August 2021 to January 2022 (14 January 2022).
[11] DFAT Thematic Report Afghanistan - Political and Security Developments August 2021 to January 2022 (14 January 2022).
[12] DFAT Thematic Report Afghanistan - Political and Security Developments August 2021 to January 2022 (14 January 2022).
[13] New York Times, ‘The Taliban Promised Them Amnesty. Then They Executed Them.’ NY Times, 12 April 2022, Opinion | The Taliban Promised Them Amnesty. Then They Executed Them. - The New York Times (nytimes.com); EUAA, Country Guidance: Afghanistan Common analysis and guidance note, April 2022, Country Guidance Afghanistan (europa.eu)
Findings
I find on the basis of her Afghan passport, her taskeras, her ability to re-enter Afghanistan in 2016/17 and her ability to speak Dari that the applicant is a national of Afghanistan of Tajik ethnicity and Sunni Muslim faith.
I accept that [Mr A] arranged for the applicant to be brought to Australia in 2016 and again in 2017 after the applicant’s aunt paid him a large amount of money. At this time the applicant was a minor and I do not accept that the applicant would have been responsible for planning or carrying out the arrangement. I find that this arrangement was organised by [Mr A].
Further, having carefully considered the information before me, I do not accept that the inconsistencies in her evidence, nor anything else before me or the Department calls into question the elements of the applicant’s claims which have remained largely unchanged over time – that her family situation changed when she was young, that she went to live with her aunt and her aunt’s husband, and that her uncle arranged for her to be married to one of his creditors. I can see no basis for disbelieving these elements of the applicant’s claims, given that the inconsistencies identified in her evidence by the Department are not ones that any weight can be placed on given the fact she was asked to recall details from when she was a minor, and that the arrangement for her to come to Australia I have found was not carried out by her and she was not involved in that.
I accept that, were she to return to Afghanistan now, her aunt’s husband would force her into marrying his creditor. I find that forced marriage constitutes serious harm because it is a denial or removal of a person’s fundamental right to freedom and bodily autonomy, and also can constitute inhuman or degrading treatment. I find that the applicant’s aunt’s husband would force her into a marriage partly for personal reasons related to his debt and his relationship with the creditor and the applicant, but also because she is a woman and the system of legal, cultural and religious power in Afghanistan under the Taliban gives the male head of a household an unfettered right to marry his female relatives as he sees fit. This is a fundamentally gendered form of harm. Forced marriages, in Afghanistan as everywhere else, are almost exclusively a harm visited on women. I find that the applicant’s membership of the particular social group of women, and young women with no male protection are essential and significant reasons, if not the sole reasons, for the harm. While there was an announcement by the Taliban that they were banning forced marriages,[14] there are more recent reports that the practice continues and may have increased due to the dire economic situation.[15] Having regard to these more recent reports, and to the record of the Taliban generally not honouring their pronouncements in relation to the situation for women, I find that the Taliban authorities, such as they are, are not willing or able to offer the applicant protection against the persecution. Further, having regard to the country information, I find that the applicant, who would return as a young woman without male protection, would be unable to relocate to another area of the country where she would not face a real chance of the harm feared – she would be unable to go into public without a male relative, nor able to find accommodation or employment as a woman, and would most likely be returned to her uncle and aunt if she were located by Taliban authorities in another area of Afghanistan.
[14] Al Jazeera, ‘Taliban bans forced marriage of women in Afghanistan’, Al Jazeera, 3 December 2021, Taliban bans forced marriage of women in Afghanistan | Taliban News | Al Jazeera.
[15] Al Jazeera, ‘Afghanistan child marriages continue despite Taliban ban’, 1 January 2022, Afghanistan child marriages continue despite Taliban ban - YouTube; Rukhshana, ‘Forced marriages increased in Afghanistan, activists say’, 16 April 2022, Forced marriages increased in Afghanistan, activists say – Rukhshana Media

These findings are reinforced by the country information above in relation to women. It is clear that the applicant would have no choice but to return to the home of her aunt and her husband – there is no credible scenario where a young unmarried woman could live by herself or away from her family. The harm to the applicant is compounded by the high levels of official and societal discrimination she would experience as a woman returning to the Taliban’s Afghanistan, which discrimination may, of itself, amount to a trammelling of her fundamental human rights so severe that it would amount to serious harm
Further, the applicant would return as a person with some level of association with a former [occupation], [Mr A]. At the very least she would be returned with a passport bearing his last name. Even if she were to attempt to explain the association, this may be looked on unfavourably or may be disbelieved. The country information that I have been able to find does not mention [occupations] specifically, but it can safely be inferred that they may be treated with a level of concern and suspicion by the Taliban, having [worked] in a Western [country]. I consider it reasonable that [Mr A] would be treated with some concern and suspicion by the Taliban authorities as a former [occupation] with a high degree of time spent in the West / outside Afghanistan. As someone associated with him and bearing his name in her passport, the applicant would also be subject to some level of suspicion. I find that this association would increase the chance of the applicant facing serious harm as discussed above.
Will the applicant face persecution on return to Afghanistan?
I have accepted, above, the heart of the applicant’s claims – that she will be forced by her aunt’s husband to marry his creditor. As above, I have found that this constitutes serious harm, and would be for the essential and significant reason of her membership of a particular social group, women. The harm would be systematic as it would be targeted and non-random. The Taliban would not offer effective protection measures, nor can the applicant relocate. She cannot modify her behaviour. The harm would be compounded by the official and societal discrimination suffered by all women in the Taliban’s Afghanistan, and by the applicant’s association with [Mr A].
I find that there is a real chance, that is one that is not remote, that the applicant will suffer serious harm in the form of forced marriage at the hands of her uncle and/or other male family members, significant official and societal discrimination, and questioning and possible detention and further harm from the Taliban due to her association with [Mr A] if she returns to Afghanistan now or in the reasonably foreseeable future. She is a refugee.
Conclusions
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a)of the Migration Act.
Sean Baker
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.
…

[2022] AATA 2225

11 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness

Jurisdiction

Remedies