2210099 (Refugee)
[2024] AATA 3931
•29 August 2024
2210099 (Refugee) [2024] AATA 3931 (29 August 2024)
DECISION RECORD
DIVISION:
Migration & Refugee Division
CASE NUMBER:
2210099
COUNTRY OF REFERENCE:
North Macedonia, Republic of
MEMBER:
Fraser Robertson
DATE:
29 August 2024
PLACE OF DECISION:
Perth
DECISION:
The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 29 August 2024 at 11:56am
CATCHWORDS
REFUGEE – protection visa – Republic of North Macedonia – involvement in the 2001 conflict in Macedonia – attack by Albanians – physical assault – fear of killing – mental health issues – employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1
EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804
Fox v Percy [2003] HCA 22; 214 CLR 118
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362
W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379
W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757
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
INTRODUCTION
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant protection visas under s 65 of the Migration Act 1958 (Cth) (the 'Act').
The applicants are nationals of the Republic of North Macedonia ('Macedonia'). The primary review applicant ('[Applicant 1]') is [an age]-year-old male. The second-named applicant ('[Applicant 2]') is [an age]-year-old female. [Applicant 1] and [Applicant 2] are a married couple. They applied for and were granted tourist visas because they intended to visit their son, his wife, and [grandchild], who live in Australia. They were granted tourist visas in late July 2018 and arrived in Australia in August 2018.
The applicants validly applied for a protection visa in January 2019. Essentially, they claim to fear harm because they were attacked by masked Albanian men who held [Applicant 1] at gunpoint because of his involvement in the 2001 conflict in Macedonia between the Albanian National Liberation Army and the Macedonian government. [Applicant 2] makes an additional claim related to her mental health and inability to work.
The applicants were interviewed in May 2022 regarding their protection visa application. Following that interview, the Minister's delegate refused to grant the applicants protection visas in June 2022. A copy of this decision was provided to the Tribunal.
The applicants attended a hearing before the Tribunal on 21 August 2024, assisted by an interpreter in Macedonian, where they gave evidence and presented arguments in support of their review application.
For these reasons, the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Protection visa application
Each applicant claims to be of Macedonian ethnicity and Orthodox Christians. In their protection visa application, the applicants claimed that [in] March 2018, they were travelling together, having visited their daughter and her children, when at approximately [time] a [vehicle 1] with no number plates followed them, later overtook them, cut them off and made them pull over, "by force"[1]. Three men with covered faces exited the car. All three men were armed with guns.[2]
[1] Protection visa application, p 8, Q 44.
[2] Protection visa application, additional page in response to Q 44.
It was claimed that they pulled [Applicant 1] from the car, told him to lie on the ground and placed a gun to his head. The attackers stated they knew [Applicant 1’s] name and that he had been involved in the 2001 "war" with Albania. The attackers said they wanted "revenge" because [Applicant 1] had participated in the 2001 conflict in Macedonia.
The application claimed that in response, [Applicant 1] claimed he had been taken into the army and had no choice. It is claimed that the men laughed and said that they knew where the applicants lived, would find them, and kill them. They warned against making a police report. The applicants also claim that they were warned against, but in any event, could not meaningfully obtain assistance or protection from police.
Departmental Interview
Both applicants were interviewed on 19 May 2022. I have listened to those interviews. Having done so, I am satisfied that the delegate's summary of the interview is fair.[3] Broadly, the claims made by [Applicant 1] at the interview were consistent with the claims made in writing. Whilst there were some inconsistencies, as set out in the delegate's decision, I am not prepared to attach weight to them for reasons I will explain.
[3] Delegate's decision, p 5.
RELEVANT LAW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, either they are a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person who holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) of the Act 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 decision‑maker 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.[4]
[4] Migration Act 1958 (Cth), s 5H(1)(a).
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.[5] Persecution must involve serious harm[6] and systematic and discriminatory conduct.[7]
[5] Migration Act 1958 (Cth), s 5J(1); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[6] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.
[7] Migration Act 1958 (Cth), s 5J(4)(c).
A fear of persecution will be "well‑founded" if there is a "real chance" that the person will suffer the feared persecution if returned to the receiving country and the real chance relates to all areas of that country.[8] A "real chance" is a prospect that is not "remote" or "far‑fetched", it does not require a likelihood of persecution on the balance of probabilities.[9] Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which appear in the attachment to this decision.
[8] Migration Act 1958 (Cth), ss 5J(1)(b)-(c); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
[9] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [10] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389, 398, 407, 429.
Complementary protection criterion
If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a) of the Act, they may satisfy the 'complementary protection criterion' under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a "necessary and foreseeable consequence" of return to the receiving country.[10]
[10] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
'Significant harm’ is exhaustively defined in s 36(2A) of the Act.[11] The circumstances in which a person is taken not to face a real risk of significant harm are set out in ss 36(2A) and (2B), which appear in the attachment to this decision.
[11] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
Credibility
Assessing credibility is an inherently difficult task,[12] which should be careful, thoughtful, and conducted fairly and reasonably.[13] Inconsistencies in an applicant’s account may or may not be significant.[14] Caution is required when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country that they fled to avoid persecution.[15]
[12] See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.
[13] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ).
[14] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
[15] See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).
I should give the benefit of the doubt to those who are generally credible but cannot substantiate all of their claims.[16] In approaching the applicant's claims, I have also been mindful of the observations of the Full Court of the Federal Court of Australia in W375/01A where it was observed:[17]
As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.
[16] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV 4 at [203]–[204].
[17] W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379 at [15] (Lee, Carr and Finkelstein JJ):
ANALYSIS, FINDINGS AND REASONS
The issue in this application is whether the applicants meet the refugee criterion for protection contained in s 36(2)(a), or, alternatively, the complementary protection criterion contained in s 36(2)(aa) of the Act.
I have considered the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines'.[18] There is no Department of Foreign Affairs and Trade Country Information Report for Macedonia.
[18] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or is for the reason claimed.[19]
[19] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 1997 CLR 559 at [124] (Brennan CJ; Dawson, Toohey, Gaudron, McHugh, Gummow JJ).
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[20] The Tribunal does not have any responsibility or obligation to specify or establish, or assist an applicant in specifying or establishing their claims. When assessing the claims made, there is no requirement to uncritically accept any or all of the allegations made.[21] Rebutting evidence is not required before finding that a particular factual assertion is not made out.[22]
[20] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
[21] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[22] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).
Country of nationality
The applicant claimed to be a national of Macedonia. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country. I am satisfied that Macedonia is the applicant’s country of nationality and the receiving country.
The credibility of the applicants' claims and evidence
The applicant's protection visa application discloses that it was prepared with the assistance of their son. Additionally, both applicants gave evidence through an interpreter at both the interview and hearing. Therefore, I do not consider that it is appropriate to forensically examine their evidence to uncover and expose each inconsistency in their account and use that as a basis to find the applicants lacking in credibility.
Broadly speaking, their evidence has been consistent. Both applicants consistently claimed that they were driving on a road when they were 'cut off' by a [vehicle 1] and forced to stop. They have consistently claimed that three men got out and that at least one of those men was armed. They have consistently claimed that the attackers removed [Applicant 1] from the vehicle and placed him on the ground. They have consistently claimed that the attackers called [Applicant 1] by his first name, claimed that they knew where he lived, and that they would find him and kill his wife. However, as I will explain, I reject the entire narrative of the March 2018 events. I do so not because of any concerns about a lack of consistency in the accounts but because I find the overall narrative of the March 2018 incident far-fetched, implausible, and ultimately incapable of belief without independent corroborating evidence.
[Applicant 1’s] evidence, which I am prepared to accept, is that he had undertaken national service in the Army in the [time period] and that he joined as a reservist during the conflict in 2001. I accept that his brother was a reservist at the time, and he joined following discussions with his brother. It is not clear precisely what role [Applicant 1] performed.
[Applicant 1] claims, and I accept, that he was posted to a unit that operated tanks. [Applicant 1] was able to immediately provide information about the models of tanks that he was involved in during both his national service and in 2001. That information was consistent with country information. Yet, at the interview, he claimed he was a tank driver.[23] At the hearing before me, [Applicant 1] disavowed any claim that he was a driver and instead claimed that he operated the tank's main gun. This is one example of an inconsistency that I have resolved to overlook and give the applicants the benefit of the doubt about. I consider that I can do so because whether the applicant was the gun operator or driver is not material to the overall resolution of their claims. I accept that [Applicant 1] was involved in the operation of tanks.
[23] See Delegate's decision, p 5.
There was no suggestion that [Applicant 1] was directly involved in combat or hostilities. I accept that whilst the prospect of being deployed to participate in hostilities or combat areas was always possible, it did not occur. [Applicant 1] claimed, and I am prepared to accept, that he was in the army for "a few months.”
Following [Applicant 1’s] departure from the army and until the March 2018 incident, there is no evidence to suggest that either applicant was targeted – in any way – because of his time in the army during the 2001 conflict. [Applicant 1] could not say how he was able to be identified. He speculated that the information may have come from the government. I suggested that if the information came from the government, it would not likely have been limited to his name.
It is not plausible that [Applicant 1] would be targeted after 17 years for having served in the army for a few months, some 17 years earlier. In any view, 17 years is a long time to wait for "revenge", particularly if you know who you wish to target. Had the attack been part of a broader pattern of retaliation against persons who served during the 2001 conflict, it is reasonable to expect that other attacks would have occurred around March 2018 or subsequently. I am unaware of any country information indicating that persons who formerly served in the army during the 2001 conflict are targeted for that reason, nor have the applicants provided any such information. Had the attack been particularly targeted against [Applicant 1], it is unclear what the motivation would be. He did not actively participate in combat or hostilities. He was not in a leadership position. He was, frankly, an unremarkable target. If the group desired to kill the applicants, then they could have done so on the side of the road in March 2018. Having held [Applicant 1] at gunpoint, it does not seem illogical that had the attackers sought to kill [Applicant 1] and [Applicant 2], they could have shot them on the spot and fled.
The March 2018 incident itself also lacks internal logic and plausibility. If the attackers intended to avoid police attention, conducting an armed attack on a public road is inconsistent with that goal. The likelihood that bystanders would observe a vehicle driving in a manner to cause another to stop or armed men removing someone from a vehicle and holding him at gunpoint is high. The likelihood that they would then subsequently contact the police is high. The risk of police involvement in the scenario described by the applicants appears substantial and inconsistent with the stated intention of the attackers.
Moreover, the apparent decision to stage the incident on a public road is questionable if it was a targeted attack. The applicants imply that the attack was specifically directed at them, as evidenced by the attackers' knowledge of [Applicant 1’s] first name and the attacker's assertion that they knew where the applicants lived. If this were truly a targeted operation, it would be both implausible and illogical for the attackers to choose a public location for the attack. The attack could have been carried out more easily (and discretely) in, or near, the applicants’ home, either by following them there or selecting a time when public activity was minimal, such as during the night, thereby reducing the risk of police intervention.
The applicants' subsequent actions are also difficult to reconcile with the March 2018 incident occurring, as they claim. Upon leaving Macedonia, they did not sell their home, nor did they do so after applying for a protection visa. Instead, their daughter and her family moved into the property. In circumstances where the attackers had expressed an intention to harm the applicants at their home and the risk to the applicants is claimed to be an ongoing risk, the willingness to permit their daughter and her family to live there appears implausible. If the applicants genuinely believed, as they claim, that their home was known to the attackers, it is difficult to understand why they would allow their daughter to live there and potentially become a target herself. A more plausible course of action, consistent with their fears, would have been to sell the house and use the proceeds to secure alternative accommodation for their daughter.
I further note that the applicants vaguely suggested that the fire that damaged their home in December 2020 while their daughter lived there was connected to the March 2018 incident. Although I accept that a fire occurred, I am not persuaded that it was related to the previous attack. Moreover, if the applicants truly believed there was a connection, their decision to allow their daughter to continue occupying the property is similarly implausible.
I have considered whether the consistent aspects of the applicants' evidence overcome my concerns about the implausible nature of their evidence and am not so satisfied. The events described are so implausible that absent credible independent corroborating evidence of the March 2018 incident, I am not willing to accept and reject that the March 2018 incident occurred in the manner claimed or at all.
As I do not accept that the March 2018 incident occurred, I also do not accept that [Applicant 2] suffered from PTSD on that basis. Despite the lack of evidence in this regard being raised by the delegate, no corroborating evidence from counsellors, psychologists, or psychiatrists has been provided. Whilst [Applicant 2] has, I accept, previously suffered from other medical conditions, her evidence at the hearing was that she is presently working, and her health would result in her facing a real chance of harm if she was returned to Macedonia. In any event, no claim was made that medical or mental health treatment is unavailable in Macedonia, or that access to medical treatment would be refused for any reason. I am not satisfied that [Applicant 2’s] health results in her facing a real, as opposed to a remote, chance of harm for any reason.
I do not accept that the applicants, or either of them, will be harmed now or in the reasonably foreseeable future if returned to Macedonia. I do not accept that they face a real chance of harm for any reason.
I have separately considered [Applicant 2’s] claims to be unable to work. Those claims were made six years ago. Before the Tribunal, [Applicant 2] was working. As such, I am not satisfied that the applicants, or either of them, face a real chance of harm on this basis.
Even if I were to accept (which I do not) that either or both applicants were unable to work, I am not satisfied that any inability to do so would involve persecution or involve the essential and significant reason of their race, religion, nationality, membership of a particular social group or political opinion.
I have considered the applicants' claims individually and collectively. Having done so, no feature of any of the above claims, when considered cumulatively with one or more or all the other claims, would lead me to conclude that the applicants have a well-founded fear of persecution.
I am not satisfied that the applicants, or either of them, have a well-founded fear of persecution within the meaning of s 5J(1) of the Act or that they are refugees within the meaning of s 5H(1) of the Act.
As such, the applicants do not satisfy the criterion in s 36(2)(a) of the Act.
DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?
To be entitled to complementary protection, there must be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Macedonia, there is a real risk that they will suffer significant harm.[24]
[24] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[25] To the extent that the factual bases for claims under s 36(2)(a) and s 36(2)(aa) overlap, a decision-maker, when considering the complementary protection criterion under s 36(2)(aa), is entitled to refer to and rely on any relevant findings the decision-maker made when considering the refugee criterion under s 36(2)(a).[26]
[25] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
[26] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [27] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ) and the authorities there cited.
I have already found that the applicant does not face a real chance of serious harm. On that basis, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of their removal from Australia to Macedonia, there is a real risk that they will suffer significant harm.
Even if I were to accept (which I do not) that either or both applicants were unable to work, I am not satisfied it would involve the arbitrary deprivation of their lives or the intentional infliction of harm on the applicants and, as such, would not and could not involve significant harm, as that term is exhaustively defined in the Act.[27] As such, and separately, the applicants do not satisfy s 36(2)(aa) of the Act on that basis.
[27] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [26]–[27] and [114].
Whilst I accept that the applicants do not wish to return to Macedonia, I conclude that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Macedonia, there is a real risk that they will suffer significant harm. The applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
For the reasons above, I do not accept that the applicant is owed complementary protection or otherwise meets the complementary protection criterion in s 36(2)(aa) of the Act.
CONCLUSION
The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a). I have also considered the alternative criterion in s 36(2)(aa). I find that the applicant is not 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) by 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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Fraser Robertson
MemberATTACHMENT – 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.
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36 Protection visas – criteria provided for by this Act
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(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
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