2209261 (Refugee)

2209261 (Refugee) [2023] AATA 4191 (5 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Mrs Jerrylyn Fuerte (MARN: 1386185)
CASE NUMBER: 2209261

COUNTRY OF REFERENCE: Timor-Leste
MEMBER:Alison Murphy
DATE:5 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 October 2023 at 2:26pm
CATCHWORDS
REFUFEE – protection visa – Timor-Leste – accumulating debts – fear of detention – fear of physical harm – economic conditions – harm from martial arts groups – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 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 East Timor, applied for the visa on 27 January 2021. The delegate refused to grant the visa on the basis that the applicant is not a person owed protection by Australia.
The applicant appeared before the Tribunal on 21 September 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Timor-Leste passport, a copy of which is contained on the Departmental file along with a copy of his Timor-Leste National Identity Card. He has at all times stated that he is a citizen of Timor-Leste and he has been assessed on that basis by the Department. The Tribunal finds he is a citizen of Timor-Leste and has assessed his claims against Timor-Leste as his country of nationality and the receiving country.
The applicant’s personal background
The applicant is [an age]-year-old male from the town of [Town 1] in the state of [State 1], Timor-Leste. At hearing he gave evidence that he grew up in a household comprising his parents and [specified family members], who are now adults aged between [specified ages].
In the visa application he states that he is of Timorese ethnicity and Catholic religion.
He gave evidence that he completed his secondary school education in Timor-Leste, before working as [an occupation 1] in a job that he said paid only about $30 every three months. His parents were farmers and worked on the land and he helped his mother cook food to sell.
The applicant first entered Australia [in] October 2018 as the holder of a [Temporary] visa in the [specified] stream. He returned to Timor-Leste in May 2019, returning to Australia [in] October 2019 on [visa] valid until 21 June 2020. He has not departed Australia since.
He departed Timor-Leste from Dili [in] October 2019 using a passport granted to him [in] 2018 and valid until [2023].
Since arriving in Australia he has worked on farms.
The Tribunal accepts the above matters to be true.
The applicant’s claims for protection before the Department
In the visa application, the applicant stated that he faced problems in Timor-Leste because he had a lot of debts but insufficient money to repay those debts. He claims that if he returns to Timor-Leste, he will go to prison. He has applied for protection in Australia so he can earn more money here and when he returns home he can solve all the problems that he faced.
The applicant states he did not try to relocate because everywhere in Timor-Leste is the same in that it is hard to find a good job to pay off his debts. If he returns to Timor-Leste, his financial crisis will remain unsolved and there is nothing the government can do to help him with his personal debt issues. In response to a question asking if he could relocate within Timor-Leste to an area where he would not be harmed, the applicant stated that he is not sure about this.
The delegate refused to grant the visa, considering the applicant did not meet the definition of a refugee because he did not claim to fear persecution for reasons of his race, religion, nationality, political opinion or membership of a particular social group. In relation to complementary protection the delegate considered a range of country information about the general economic situation as well as the situation for debtors in Timor-Leste. The delegate acknowledged that the applicant may return to Timor-Leste with outstanding debt that he may find it difficult to repay, but was not satisfied he would face a real risk of significant harm for this reason on return to Timor-Leste. In particular the delegate noted that the applicant did not claim to have done anything illegal in Timor-Leste and did not accept the applicant’s debt would amount to a criminal offence in Timor-Leste, not that he would face imprisonment or any other form of harm on return for this reason.
The applicant’s claims for protection before the Tribunal
In pre-hearing submissions, the applicant’s representative sets out that the applicant lodged the protection visa application with the help of another person whom she believes was not a registered migration agent. She states that the applicant claims he has lots of debts from informal lenders in Timor-Leste and fears for his life due to the non-payment of those debts. He also fears being put into prison as he cannot repay the debts and he is at great risk of being persecuted or killed by those to whom he owes money should they become aware he has returned to Timor-Leste. She states that the applicant believes that harm to his life is very likely as he knows of other persons who have suffered the same fate as him and have experienced significant physical harm. The applicant also claims that people in his country experience severe economic and financial situations that result in young people committing crimes to survive, with an unemployment rate in Timor-Leste of 90%. In Australia the applicant feels safer as he can work and pay his daily expenses while saving up enough money to pay off his debts in Timor-Leste.
At hearing the applicant gave evidence that he came to Australia in October 2018 to [work], returning to Timor-Leste after six months. When asked if he had any problems in Timor-Leste, he said he had no problems except economic problems because it was difficult to make a living and this is why he returned to Australia.
When asked why he applied for a protection visa, the applicant stated that his visa was finished and he had no money. He was told by the foreigners that he couldn’t get work without a visa and so he applied for the protection visa.
I explained to the applicant that a protection visa was for persons who had a well-founded fear of persecution in their own country; or who faced a real risk of significant harm. The applicant stated that he came to Australia to [work] because his mother had a debt and if he returned without the money he would be jailed or even killed.
When asked why he thought he would be jailed given it is not a crime to borrow money, he said the people his mother borrowed money from could complain to the police who could put him in a cell. If he didn’t repay the money, people could kill him. When asked about the debt, he said his mother borrowed US$[amount] to pay for his siblings to be educated in Indonesia. When asked who she borrowed money from, he said it could be a friend or people you can borrow money from. He said his mother couldn’t earn money so he is the one that needs to earn the money and that is why he came to Australia.
I discussed with the applicant that I was having difficulty accepting that anyone would lend his mother US$[amount] when she had no way to pay it back. He said he promised to pay back the money. He now knows a protection visa is for countries where there is a war, but in Timor-Leste they already have their independence and there is no conflict.
When asked if he thought anyone would try to harm him if he returned to Timor-Leste, the applicant stated that he was scared because of the debt and there were people who were very jealous of those who worked overseas. He gave evidence that unemployment among young people was 90% and even those who had work were only paid A$150. Because of the very high unemployment, people become involved in martial arts and young people are scared to leave their village or suburb because of fighting. As a result of the very high unemployment rate many young people go to work in Korea, Australia and England.
The applicant stated that the problem was that he owed money, which he wanted to repay, but that even if the loan was repaid he still didn’t want to go back because the situation was so bad and he was traumatised by the violence. When I reminded him that he had earlier given evidence that he didn’t have any problems in Timor-Leste before he returned to Australia, he said he applied for the protection visa through an agency because he needed to be somewhere safe where he can earn money to pay back the debt and pay for his siblings’ schooling.
The Tribunal accepts that the applicant wishes to stay in Australia to work so that he can support his family in Timor-Leste. However, for the following reasons the Tribunal does not accept he is responsible for repaying a US $[amount] loan taken out by his mother, nor does it accept there to be a real chance that any person or group would seek to harm the applicant because of money he or his mother owe in Timor-Leste:
·As discussed with the applicant at hearing, US$[amount] is a very large amount of money. The Tribunal has significant doubts that any person, group or institution would lend such a sum of money to a woman with no means of repaying the debt as claimed by the applicant;
·The applicant’s evidence about the loan was vague. He was unable to say who lent his mother the money, other than it may have been a friend or a person who you can borrow money from. He provided no details about the timing or terms of the loan, or the basis on which his mother was able to borrow such a large amount of money;
·The applicant gave evidence that on his return to Timor-Leste in 2018, he did not experience any problems other than economic problems as a result of being unable to find a job to make a living. In particular he did not suggest that he was harmed or threatened by the person from whom his mother had borrowed money. While the applicant claims that he is solely responsible for paying back his mother’s debt, he also told the Tribunal his siblings are all adults aged between [ages];
·As discussed with the applicant at hearing, country information suggests that many people in Timor-Leste borrow money to meet household expenses. However, a household survey conducted by the United Nations Development Assistance Framework in 2020 indicated that only 1.3% of vulnerable households and 0.8% of all households surveyed took out money from private money lenders or shop owners, while almost half (45.6%) said they had borrowed from friends, family or colleagues; a quarter through savings and credit cooperatives and 22.7% through a bank.[1] Similarly an Oxfam-led assessment of food security in Timor-Leste in 2020 reported that the main lenders were village savings and loans community/ savings groups (68%), friends and relatives (16%), cooperatives (7%) and banks and microfinance institutions (6%). Only 5% reported borrowing from private money lenders;[2]
·At hearing I discussed the above information with the applicant, noting that it appeared to indicate that borrowing money from private money lenders is not all that common in Timor-Leste. The applicant responded in Timor-Leste when people borrowed money, they had to repay the borrowed amount plus interest, giving the example that on a loan of A$1,000 the interest would be A$100. He said the loan keeps going up and up and had to be repaid quickly. He said if the money was not paid back, the lenders would call the police who would take the borrowers into custody and take over their land or house;
·The applicant’s evidence at hearing was inconsistent with the submissions of his representative. While his evidence is that the debt relates to a US$[amount] borrowed by his mother, his representative states in her pre-hearing submissions that the applicant fears harm because he has lots of debts from informal lenders. At hearing the applicant did not suggest he feared harm for reasons of any debt other than that he said was taken out by his mother.
[1] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p.59-60
[2] ‘Rapid Food Security Assessment 2020: Full Report Timor-Leste’, Oxfam, 9 June 2020 p.18.
The Tribunal has carefully considered the applicant’s evidence about the loan he claims his mother has taken out in Timor-Leste. However, for the reasons set out above the Tribunal does not accept that any person, group or institution as claimed would loan the applicant’s mother US$[amount] as claimed. It follows that the Tribunal does not accept there to be a real chance that the applicant will be jailed for failure to repay that loan, nor does the Tribunal accept there to be a real chance that any person or group would seek to harm the applicant for reasons relating to that loan. As the applicant did not suggest in his evidence that he himself had taken out any other loan from informal lenders as suggested by his representative, the Tribunal does not accept that the applicant has any such loans. It follows that the Tribunal does not accept there to be a real chance that the applicant will be harmed by any person or group because of any loan he has taken out himself.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3] For the same reasons the Tribunal does not accept there to be a real risk the applicant will face significant harm as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste for any reason to do with that loan.
[3] [2013] FCAFC 33 at [246], [297], [342].
Fear of economic harm
At hearing the applicant stated on several occasions that he came to Australia to work and earn money because of the high unemployment in Timor-Leste and the fact that even those who found work did not earn enough to live and support their families.
The Tribunal accepts that to be true, noting that country information cited in the delegate’s decision suggests that Timor-Leste is one of the poorest countries in the Asia-Pacific region and much of government spending is reliant upon overseas aid.[4] Poverty levels reportedly declined from 50% in 2007 to 42% in 2014, but only unemployment is high, especially among young people. Seventy per cent of the country’s population live in rural areas and rely on agriculture for their livelihoods; subsistence agriculture is prevalent and many households lack food security. Formal employment opportunities are concentrated in Timor-Leste’s public sector and in businesses that supply the government and the nation relies heavily on funding from petroleum wealth.[5]
[4] ‘United Nations Development Assistance Framework (UNDAF) 2015-2020 in Timor-Leste: Evaluation Report’, United Nations Development Program (UNDP), May 2019, p.11.
[5] ‘Pacific Finance Sector Brief: Timor-Leste’, Asian Development Bank (ADB), October 2019.
More recent country information located by the Tribunal indicates little recent change. Over 25% of Timor-Leste’s population live below the poverty line, more in rural areas, and much of the population is dependent on subsistence farming.[6] The economy is almost entirely reliant on oil and gas and 80% of government spending comes from the Petroleum Fund. However, income into this fund is now negligible as Timor-Leste has already collected 99% of the revenues payable from current fields of production and it is estimated the Petroleum Fund could be entirely completed within a decade.[7] In 2021 the United Nations reported that the overall unemployment rate in Timor-Leste was 11.9%, but among young people it rose to 22.1%. Only 45% of the working age population were employed in the market economy as at March 2021.[8]
[6] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021.
[7] Bertelsmann Stiftung, ‘[Bertelsmann Stiftung’s Transformation Index.] BTI 2022 Country Report. Timor-Leste’.
[8] United Nations Timor-Leste, with United Nations Development Program] ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’.

COVID-19 reportedly had a devastating impact, with food insecurity rising and household incomes dramatically decreasing over the first months of the pandemic. Forty per cent of households surveyed by the United Nations reported that they were forced to engage in coping strategies including reducing their food intake, using savings and selling livestock.[9] More than half of all households surveyed had to survive without any form of income in the early months of the pandemic.[10]
[9] Timor-Leste – Rapid Food Security Assessment 2020 | Oxfam in Asia
[10] United Nations Timor-Leste, with United Nations Development Program] ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’ p 8 -10.
Given the country information above, the Tribunal accepts that if the applicant is returned to Timor-Leste, there is a real chance he will experience economic harm as a result of being unable to secure employment that pays as much as that in Australia.
As set out in the delegate’s decision (a copy of which was provided to the Tribunal by the applicant), the applicant does not claim that his economic problems relate to his race, religion, nationality, membership of a particular social group or political opinion. When I discussed this with the applicant at hearing, he stated that there was no discrimination in Timor-Leste for these reasons. As the economic harm feared by the applicant is not directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion, it does not constitute a well-founded fear of persecution as that term is defined in s 5J.
In considering the complementary protection criteria, the Tribunal does not accept that any economic harm the applicant may experience in Timor-Leste by way of reduced earning capacity or financial hardship would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. The applicant does not suggest that he will be subjected to the death penalty in Timor-Leste for any reason. For these reasons the Tribunal does not accept that the economic harm feared by the applicant would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A).
Fear of harm from martial arts groups
At hearing the applicant made new claims to fear harm from martial arts groups on return to Timor-Leste. He said that the very high rates of unemployment mean that young people become involved in martial arts groups who fight suburb against suburb, village against village. Large numbers of young people leave Timor-Leste to work in countries including Australia, Korea and England and those who remain are very jealous of those who work overseas. He said he was traumatised by the violence he had experienced in Timor-Leste.
Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. At hearing the applicant stated that he and others applied for the visa through a foreigner because they didn’t know what visa they could get, but he now understood that a protection visa was for countries where there is conflict. He said that young people in Timor-Leste were really worried about the martial arts groups and the young people were always fighting each other, which is why he wants to stay in Australia.
At hearing I discussed with the applicant that the country information available to the Tribunal indicated that Timor-Leste is poor, with significant economic problems, but did not indicate that it experienced significant violence or security issues. The applicant said that there were online social media posts and material showing martial arts groups fighting in Timor-Leste. He showed the Tribunal a short video clip on his phone which appeared to show a small number of young men fighting in a rural area. As discussed with the applicant at hearing the Tribunal could not identify when that fighting occurred, or the reasons for that fighting. Although the Tribunal asked the applicant to send through the link for that video after the hearing as well as any media articles or other information he wished the Tribunal to have regard to when assessing his claims, the applicant did not do so.
While the Tribunal accepts that high youth unemployment and poverty may lead to some level of fighting between groups of youths in Timor-Leste, the evidence available to the Tribunal does not suggest this fighting is so frequent or prevalent as to create a real chance that the applicant will face harm by any group of person if returned to Timor-Leste. In making that assessment the Tribunal notes that the applicant gave evidence that he had no problems except economic problems while living in Timor-Leste and that there was no conflict or discrimination in Timor-Leste, rather the problem was the very high level of unemployment.
For the same reasons the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will be subjected to significant harm by any person or group as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Murphy
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 4191

5 October 2023

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Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies