2208634 (Refugee)

2208634 (Refugee) [2024] AATA 2656 (9 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Sophie De Rohan
CASE NUMBER:  2208634
COUNTRY OF REFERENCE:                   India
MEMBER:Nora Lamont
DATE:9 January 2024
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 09 February 2024 at 9:16am
CATCHWORDS
REFUGEE – protection visa – India – member of particular social group – HIV and Hepatitis C – wife left, and told families, friends and community – physical and mental health treatment – no other support in Australia – fear of discrimination and persecution, and lack of access to required medications – new, understanding wife and child in home country – country information – varied access to treatment and prevailing attitudes – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 June 2022 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 India, applied for the visa on 5 May 2021.
The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review.
There are no non-disclosure certificates on the applicant’s file.
Based on copies of the applicant’s passport and the applicant’s oral and written evidence, and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of India and has assessed their claims against that country in relation to s36(2)(a) and s36(2)(aa) of the Migration Act 1958.
Chronology of Migration Movements
·[June] 2008 – Applicant arrives in Australia as the holder of a TU-572 visa (granted on 18 June 2008).
·[April] 2011 – Applicant departs Australia as the holder of a TU-572 visa.
·[May] 2011 – Applicant arrives in Australia as the holder of a TU-572 visa (ceasing 22 September 2012).
·[January] 2014 – Applicant departs Australia as the holder of a VC-485 visa (granted on 30 October 2014).
·[March] 2014 – Applicant arrives in Australia as the holder of a VC-485 visa (ceasing 7 November 2014).
·[December] 2014 – Applicant departs Australia as the holder of a UC-457 visa (granted 30 October 2014).
·[January] 2015 – Applicant arrives in Australia as the holder of a UC-457 visa.
·[February] 2016 – Applicant departs Australia as the holder of a UC-457 visa.
·[April] 2016 – Applicant arrives in Australia as the holder of a UC-457 visa.
·[August] 2016 – Applicant departs Australia as the holder of a UC-457 visa.
·[October] 2016 – Applicant arrives in Australia as the holder of a UC-457 visa.
·[December] 2017 – Applicant departs Australia as the holder of a UC-457 visa.
·[March] 2018 – Applicant arrives in Australia as the holder of a UC-457 visa (ceasing 30 October 2018).
·[January] 2019 – Applicant departs Australia as the holder of a WB-020 visa (granted 23 January 2019).
·[April] 2019 – Applicant arrives in Australia as the holder of a TU-500 visa (granted 5 February 2019).
·[December] 2019 – Applicant departs Australia as the holder of a TU-500 visa.
·[February] 2020 – Applicant arrives in Australia as the holder of a TU-500 visa (ceasing 2 July 2021).
·[January] 2023 – Applicant departs Australia as the holder of a WB-020 visa (granted 23 December 2022).
·[February] 2023 – Applicant arrives in Australia as the holder of a WB-020 visa.
Documents provided to Tribunal.
·Copy of Department’s Notification of Decision letter dated 6 June 2022.
·Letter from [Mr A] (Psychiatry Registrar, [Health service]) dated 25 February 2022.
·Letter from [Mr B] (Deputy Director Infectious Diseases, Director HIV Medicine, [Medical Centre]) dated 28 April 2021.
·Letter from [Dr C] (Psychologist, Infectious Diseases Unit, [Health service]) dated 31 July 2018.
·Letter from [Mr B] (Infectious Diseases Physician, [Infectious Diseases]) dated 20 August 2018.
·Letter from [Dr D] (Psychiatry Registrar, Infectious Diseases Outpatient Clinic, [Medical Centre]) dated 25 November 2021.
·Letter from [Dr C] (Senior Psychologist, Infectious Diseases Unit, [Health service]) dated 18 June 2019.
·Bridging Visa B Grant Notification dated 23 December 2022.
·Booking Itinerary for travel from Melbourne to [City, Country 1] for [January] 2023.
·Booking Itinerary for travel from [City, Country 1] to [City, Country 2] for [February] 2023.
·Letter from [Mr B] ([Infectious Diseases]) dated 1 August 2023.
·Letter from [Dr E] ([Medical Clinic]) dated 21 August 2023.
·Submission from [Organisation] in support of priority processing dated 28 August 2023.
·Letter from [Mr C] (Senior Psychologist, Infectious Diseases [Health service]) dated 13 November 2021.
·[Hospital] ([Health service]) Discharge Summary dated 2022.
·Prescription list for medications taken in 2022.
·Prescription list for medications taken in 2023.
·Representative Legal Submission dated 18 January 2024.
·Representative’s Post Interview Submission to the Department of Home Affairs dated 25 February 2022.
·Support Letter by [Dr F] (Clinical Psychologist, [Psychology Services]) undated.
·Letter from [Mr B] ([Infectious Diseases]) dated 27 December 2023.
·Statutory Declaration of [the applicant] dated 16 January 2023.
·Letter from [Dr G] Psychiatrist [Health service].
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 issues in this review are whether the applicant has a well-founded fear if being persecuted for one or more of the five reasons set out in s5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of India, there is a real risk that he will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted.
The applicant’s claims before the Department and the Tribunal are as follows:
·The applicant contracted HIV and Hepatitis C.
·His wife left him.
·The applicant’s mental health has suffered greatly since his diagnosis.
·His family (particularly his father) forced him to leave his house and family and neighbours became aware of his HIV status.
·He is remarried with a child and is concerned about his wife and child being alone in India and her family finding out he is HIV positive.
·If returned to India, he will not be able to access the medication and medical care he needs to manage his HIV.
·The applicant would not be able to buy the drugs he needs to treat his depression.
·He will be discriminated against and persecuted by society and the authorities. HIV and mental health are stigmatised in India and not talked about or tolerated.
Evidence before the Tribunal
The applicant [does a job task] and lives in [Suburb]. He was born in Jalandhar, Punjab, India and lived there his whole life until coming to Australia. He has [brothers, who] live in [Country]. His father owns farmland that he leases out and the applicant used to assist his father on the land. He completed year 12 and went to college for one year but after one year his parents withdrew him as the fee was too high and they could not afford it. In 2008, he arrived in Australia on a student visa, and it was here that he met his first wife. The applicant said that she told him if they got married, he could support her while she studied so he quit school and became a dependent on her visa. The applicant married in 2011. He said that his parents came to the engagement but not the wedding.
In 2017, they went to apply for permanent residency and the applicant did a health test and it came back that he was positive for HIV and Hepatitis C. The applicant’s wife wanted to leave him. At this point in the hearing, the Tribunal took a short break so the applicant could compose himself. The applicant was so upset with his diagnosis that he left and went to see his brothers in [Country]. When asked if he was symptomatic or felt sick prior to the test results, he said that he had no clue that he was sick. Six or seven months after diagnosis, his wife left him and she told everyone that he was HIV positive, her parents, her friends, and people at the Siek temple. Her mother told her that if she had a baby with him the baby would have HIV.
The Tribunal asked the applicant if before his diagnosis he had depression or anxiety? He responded that no, he had never had that, and he was a completely different person after the HIV diagnosis. When asked if he had anyone to talk to about his diagnosis, he said that he had no one to talk to and that he told no one. He started seeing a psychologist and started taking regular medications. He started taking anti-depressants. He was admitted to the [Hospital] mental health unit for a week. He still sees a psychologist regularly and goes to the [HIV clinic].
The applicant said that he knew his second wife for a long time as she was his brother’s friend and a friend of the family. He started talking to her on WhatsApp. He returned to India in 2019, and they got married. She is [an occupation] and he told her that he had HIV and she understood. They had a baby by the end of 2019 and his wife and [child] remain in India. His mother found out that he had HIV and she told him he had AIDS. Then his father and uncle found out, and his father does not speak to him. His wife moved close to his parents, but she stays in the house all day and the women in the village gossip and try to get information out of her about him.
The Tribunal asked him if he could get the drug Davato which he takes for HIV in India. He said that he would not be able to get that medication, rather, they would give him something else that may not work for him. When he was in India, he got food poisoning and went to the hospital as he had a rash all over his body. He asked the doctors about medication for HIV, and they told him he won’t get that medication in India.
The Tribunal accepts that the applicant has HIV and that his psychological state is fragile. Since acquiring HIV, the applicant’s first wife left him, and he has no support in Australia from family or friends except for his medical team. He has since re-married and had a child, but they remain in India and close to his parents who have essentially abandoned him. Further, the Tribunal accepts that the applicant would not be provided with the same access to medical services in India that he currently has in Australia and that by forcing him to return to India could ultimately mean he has no access to mental health services or to the drugs he needs to control his HIV. He would be subjected to discrimination not only based on his HIV status but for his mental health.
Country Information
Current country information on HIV and mental health in India shows whilst some progress has been made in the treatment of HIV, the drugs that the applicant would be able to access are not the drugs he is currently taking and would not benefit the applicant. As for mental health, there is very little progress in India around mental health treatment, and it remains stigmatised.
There are 2.1 million people living with HIV in India, which has the third largest HIV epidemic in the world. On 28 April, during an event in New Delhi, Jagat Prakash Nadda, the Minister of Health and Family Welfare, announced a new test-and-treat policy that commits to providing access to HIV treatment for everyone living with HIV in the country. Prior to the change in policy, people living with HIV could only access antiretroviral medicine for free if their CD4 cells had decreased to less than 500 cells/mm³. Mr Nadda also said that the ministry’s 90–90–90 strategy will identify 90% of people living with HIV, place 90% of people identified as living with HIV on treatment and ensure that 90% of people on treatment have sustained viral load suppression. “This strategy will offer us an opportunity to work towards our commitment made during the United Nations High-Level Meeting on Ending AIDS.” [1]
[1] India to provide HIV treatment to all who need it | UNAIDS
The DFAT Country Information Report on India, dated 29 September 2023 states the following about HIV: [2]
2.20 HIV treatment is generally available with second and third-line treatments provided, usually for free. Barriers to access might be related to socioeconomic status more broadly; for example, having to take time off work to access health care. Early testing and treatment is encouraged by the government, particularly in vulnerable communities such as the LGBTI community, hijra, men who have sex with men, sex workers and people who use drugs. Vulnerable people have access to pre-exposure prophylaxis (PrEP, a medication that prevents HIV transmission) and post-exposure prophylaxis (PEP, a medication that prevents infection if taken immediately after exposure), but these treatments are not free.
2.21 Some people with HIV refuse to accept that they have the condition, or the need to treat it, because of stigma. Sex can be associated with a strong taboo in India and there is a common perception among Indians that those who have HIV are promiscuous and that their diagnosis is a moral failing. Stigma is worse in rural areas; however, transmission rates are far greater in cities.
2.22 The situation varies from state to state and according to individual circumstances, however most Indians can access HIV treatment if they need it. DFAT assesses that people living with HIV face a low risk of official discrimination and a moderate risk of societal discrimination.
[2] DFAT Country Information Report India September 2023 page 11-12.
The applicant has multiple mental health issues that are being addressed in Australia by his clinical team including psychiatrists and psychologists. However, upon return to India the applicant would not be able to access the same mental health treatment and would not have access to a team of professionals who would be able to assist him with therapy and anti-depression medication.
Mental health
2.23 Sources told DFAT the number of mental health workers is not sufficient to service demand. There is a shortage of trained mental health workers which, in practice, means that not everyone who needs care can access it. Mental health care is more likely to be accessible in large cities, while healers and other non-professionally qualified people may provide care in rural areas.
2.24 Meeting with a counsellor or psychologist is strongly associated with shame for many Indians. This often means that patients will delay treatment until the problem becomes severe, and perhaps will not even seek treatment then. The stigma associated with poor mental health makes it difficult for mental health professionals and patients to build rapport or discuss issues or solutions effectively.
2.25 Mental health is not widely discussed in India, as a result, mental health literacy is low. It is possible that many people are unaware of their mental illness or lack the knowledge or vocabulary to discuss mental health. Family is a critical aspect of Indian life and culture, and not all families are accepting of members who are living with mental illness. This stigma and taboo extends to employment and education, and those with mental illness are often ostracised at work or school.
2.26 Neurodiversity is poorly understood. People in the upper classes might be more likely to seek diagnoses and treatment for conditions such as autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD) in children, whereas those with little or no education or exposure might not understand such diagnoses. Overall, understanding and acceptance is poor, and people living with these diagnoses may be expected by families, schools, workplaces and society more broadly to modify their behaviour without support, interventions or treatment.
2.27 DFAT assesses that people living with mental illness and/or neurodiversity face a low risk of official discrimination, except to the extent that they may not be able to access appropriate healthcare. This is true of many Indians with various medical issues, as outlined in the section on healthcare. Indians living with mental illness and/or neurodiversity face a moderate risk of societal discrimination. [3]
[3] Ibid page 12.

Current country information supports the applicant’s contention that he will face harm arising from his HIV status and his mental health issues should he return to India. He is at particular risk given the prevailing official, societal, and family attitudes in India in relation to people with HIV, and people who have mental illness.
The Tribunal notes that the assessment of protection is a forward-looking assessment, that is, what would happen to the applicant upon his return to India. Given the applicant’s own evidence of his ex-wife leaving him, his father not speaking to him, and the general attitude in India in relation to HIV, combined with his poor mental health, the Tribunal considers that the chance of the applicant being harmed can be described as real, and the harm that would be experienced would be serious.
Based on the evidence before it, the Tribunal finds that the applicant has a real chance of serious harm arising from his membership of a particular social group of people with HIV in India. The Tribunal finds that the applicant has a well-founded fear of persecution for this reason.
In consideration of whether the applicant has the ability to avail himself of state protection, the Tribunal notes that the prevailing attitudes towards people with HIV is negative and stigmatised, combined with the limited ability of the applicant to be able to access the drugs he is dependent on, and the overall lack of an effective police force and no family support, the Tribunal does not consider that the applicant can avail himself of state protection.
With respect of the issue of relocation, the Tribunal finds based on the available country information that there is no place in India where the applicant can relocate to avoid the harm he faces in his home area.
For the reasons above the Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations. Therefore, the applicant satisfies the criteria in s 36(2)(a) of the Migration Act.
There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion set out in s36(2).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Nora Lamont
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 2656

9 January 2024

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal