2216142 (Refugee)

2216142 (Refugee) [2024] AATA 4088 (26 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr M Shamraiz Mehdi (MARN: 1465452)
CASE NUMBER:  2216142
COUNTRY OF REFERENCE:                   Bangladesh
MEMBER:Suhad Dutra
DATE:26 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 September 2024 at 11:41am
CATCHWORDS
REFUGEE – protection visa – Bangladesh – land dispute – threats from extended family members – court case ongoing – threats by relatives with political affiliations – no appearance at hearing – decision made rather than dismissal of application with possibility of reinstatement – brief and undetailed claims and evidence – necessity to supply relevant facts in sufficient detail – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 425, 426A, 430, 441A(5)
Migration Regulations 1994 (Cth), Schedule 2
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
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 21 October 2022 (‘Delegate’s Decision’) to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). On 3 November 2022 the applicant sought review of that decision by this Tribunal (‘Review Application’). A copy of the Delegate’s Decision was submitted to the Tribunal by the applicant.
The applicant claims to be a citizen of Bangladesh. He lodged a protection visa application (‘PVA’) on 13 April 2017. The protection claims made and arising on the evidence are that he faces serious harm in Bangladesh in connection with a land dispute. The delegate refused to grant the visa, finding that the applicant is not a person in respect of whom Australia owes protection obligations.
The applicant was represented in relation to the review and before the Department by the same person, identified as Registered Migration Agent (‘RMA’), Shamraiz Mehdi.
CLAIMS, EVIDENCE AND PROCEDURAL HISTORY
Claims and Evidence Before the Department
In the PVA the applicant declared that he received constant life threats from extended family members in Bangladesh in relation to a family land dispute. He feared future harm, threats and harassment, both physical and emotional, in Bangladesh, in connection with that dispute. He left Bangladesh and arrived in Australia on a student visa.
The family dispute was in respect of inherited family land. A paternal uncle illegally claimed the land, which was supposed to be inherited by the applicant and his siblings. The paternal uncle unlawfully registered the land in his name. The issue escalated and could not be resolved through dialogue. “We” filed a police report. The court case is ongoing. The “other side” took matters into their own hands and made several threats to his family which were directed at the applicant as next of kin for his family land. Since arriving in Australia, the threats have continued. He worries about his family but feels stressed and anxious about the thought of returning to Bangladesh.
He claimed that, in Bangladesh, he could be targeted by his paternal uncle or that uncle’s hired assassins who are pursuing the applicant and his siblings in order to transfer ownership of the land to themselves using political affiliations. He feared that he would face more threats to his life and possible murder attempts.
As to whether he sought assistance within Bangladesh, he declared that the police have a reputation for distancing themselves from such issues. Also, the other party has political affiliations. Even though his family registered a First Information Report (‘FIR’), the matter has not progressed. In Bangladesh, these types of disputes often end in death, murder, and intergenerational conflict.
As to whether he attempted to relocate within Bangladesh, he declared that, while moving temporarily to avoid conflict may be an option, it is not possible to move from his home area permanently. His family has lived in Dhaka for generations and leaving the city where his home, land and relatives are, permanently, is not an option. Leaving the city would also leave the land for the other party to occupy the land.
Department’s Procedure
As detailed in the Delegate’s Decision, the PVA completed by the applicant informed him that he should provide all his claims for protection and all documentation and other evidence to support those claims. It also informed him that a decision could be made on the information provided in his PVA.
By letter dated 8 January 2020, the Department invited the applicant to attend an interview to discuss his protection claims. The interview was scheduled to be held in person at the Department’s offices in Melbourne on 29 January 2020. By email from the applicant’s RMA dated 21 January 2020, the Department was notified that the applicant lives in New South Wales (NSW) and is unable to attend the scheduled interview in Melbourne; and that “there is very limited contact with him and he has not provided any other details”. By email dated 28 January 2020, the Department notified the RMA that the interview will be rescheduled to take place at the Department’s Sydney offices, on the same date and at the same time as previously notified.
By letter dated 29 May 2020, the Department requested that the applicant submits further information in support of his PVA. The letter including details regarding how he can submit that information. It informed the applicant that if he does not submit the requested information his PVA may be decided on the information at hand, without any further requests for information being made.
By letter dated 22 August 2022, the Department invited the applicant to attend an interview to discuss his protection claims. The interview was scheduled for 7 September 2022 via video. By email dated 5 September 2022 the applicant informed the Department that, “despite best efforts I have not been able to take a day off work to attend my interview. I request the Department to please reschedule my appointment to another date, ideally after 31st Sep.”
By letter dated 6 September 2022 the Department notified the applicant that his interview, scheduled for 7 September 2022, was postponed, and that he would be notified in writing of a new interview date and time. By letter dated 15 September 2022, the Department again invited the applicant to attend an interview to discuss his protection claims via video link, to be held on 5 October 2022.
By email dated 7 October 2022, sent to the applicant’s RMA, the Department referred to its correspondence dated 15 September 2022 inviting the applicant to attend a Department interview on 5 October 2022 and to provide further information in relation to his protection claims. The email records that the applicant failed to attend that interview; an officer of the Department spoke to the applicant’s RMA who confirmed that the applicant received the correspondence inviting him to that interview, that the applicant had forgotten about the interview date, and was unable to proceed by phone because he was at work. The email (as well as the Delegate’s Decision) records that this was the third invitation extended to the applicant to present information relevant to his protection claims in a Department interview format. The email noted that the Department does not intend to schedule a further interview for that purpose; and that it will assess his PVA based on the material at hand. The email invited the applicant to submit any information or documents in support of his protection claims via email by 14 October 2022. The email address to which the information should be sent was included. There is no record of any response to that email on the Department file.
Delegate’s Decision: 21 October 2022
The Delegate’s Decision records the Department’s attempts, detailed above, to engage with the applicant and to seek further information in respect of his protection claims. It records that he did not avail himself of several opportunities to participate in a Department interview, nor did he provide further information to support his claims. Based on the evidence advanced, the delegate was not satisfied that the applicant faced threats or harm for any reason under section 5J(1)(a) of the Act. Nor was the delegate satisfied that the land dispute, identified as the basis for the applicant’s fears of harm in Bangladesh, in fact exist. The delegate was not satisfied the applicant had suffered threats or harm from his paternal uncle or any networks of his paternal uncle due to alleged land disputes and/or any other reason. The delegate was not satisfied that the applicant has a well-founded fear of persecution. The delegate was therefore not satisfied that he was a refugee as defined in s5H(2) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Bangladesh, there is a real risk the applicant will suffer significant harm as defined in s 36(2)(aa) of the Act.
Claims and Evidence Before the Tribunal
The applicant was represented at the time of lodging the Review Application by the same RMA who represented him before the Department. While a copy of the Delegate’s Decision was submitted to the Tribunal, no additional evidence in support of the substantive protection claims made was submitted.
Tribunal’s Procedure
By letter dated 4 November 2022, sent by email to the applicant’s RMA, the Tribunal acknowledged receipt of the Review Application. The Tribunal’s correspondence included that it is important for the applicant to inform the Tribunal and his RMA immediately if his contact details change, or if his personal circumstances change in a way that is relevant to the review; and that, if he wishes to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. It also attached the AAT’s Information For Refugee Review Applicant’s – MR Division.
By email to the applicant’s RMA dated 9 July 2024, the Tribunal notified the applicant that his Review Application is being prepared for allocation to a Tribunal Member. It requested that he completes and submits a Pre-Hearing Information Form (“PHIF”) within 7 days of receiving the email. A hyperlink to the PHIF was included.
By online submission dated 16 July 2024, a completed PHIF notified the Tribunal that the applicant intends to participate in a Tribunal hearing. In response to a question in the PHIF regarding the applicant’s hearing availability and any dates in the next three months that he and any other participants will not be available to attend a hearing, it was stated that “the applicant has advised that he may need more time to provide evidence from overseas”. The nature of the evidence he intended to provide, the reasons he has not provided it so far, and the amount of time needed to obtain the evidence were not indicated. The applicant did not make any request for the Tribunal to take oral evidence from any witnesses. The PHIF was completed by the applicant’s RMA.
By letter dated 28 August 2024, sent by email to his RMA, the review applicant was invited, under s 425 of the Migration Act 1958 (Cth) (the Act), to appear before the Tribunal in person at its Sydney registry on 24 September 2024 at 1:00pm (‘Hearing Invitation’) to give evidence and present arguments in respect of his case. The invitation informed the applicant that, having considered the material before it, the Tribunal is unable to make a favourable decision on that material alone. It included that, if he is unable to appear as scheduled, he must inform the Tribunal as soon as possible; and that if he does not appear at the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear, or may dismiss the application for review without any further consideration of the application or the information before it. The letter asked the applicant to submit a completed Response to Hearing Invitation to the Tribunal within 7 days of his receipt of the Hearing Invitation; and to provide all documents he intends to rely on in support of his case by 17 September 2024. The covering letter to the RMA enclosing the Hearing Invitation also included that the RMA should provide a written submission setting out all claims made and maintained by the applicant by 17 September 2024. No response to the above correspondence was received.
The Tribunal sent SMS reminders to the applicant’s mobile phone on 17 September 2024 and 23 September 2024. The message sent was “Reminder - Your AAT hearing is on 24/09/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.”
The applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) of the Act and that the invitation has not been returned to sender. On the day and at the time of the scheduled hearing the applicant did not present at the counter of the Tribunal registry at the scheduled time. A Tribunal officer checked for the applicant at the Tribunal registry at 1:00pm, 1:15pm and 1:30pm, however he could not be located. No explanation has been provided for his non-attendance.
In circumstances where an applicant is invited to appear before the Tribunal, but does not does not appear on the day on which, or at the time and place at which, the applicant is scheduled to appear, the Tribunal may, by written statement under section 430 of the Act, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or by written statement under section 426B of the Act, dismiss the application without any further consideration of the application or information before the Tribunal[1].
[1] s 426A(1A)(a) and (b) of the Act
If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the initial dismissal decision under section 426B of the Act, apply to the Tribunal for reinstatement of the application[2]. On application for reinstatement the Tribunal must: if it considers it appropriate to do so, reinstate the application, and give such directions as it considers appropriate in the circumstances; or confirm the decision to dismiss the application[3]. If the Tribunal makes a decision on the review without taking any further action to allow or enable the applicant to appear before it, the review application is finalised.
[2] S 426A(1B) of the Act
[3] S 426A(1C) of the Act
In considering how to proceed, the Tribunal is mindful that it must act in a way that is fair and just[4]. The Tribunal must also exercise its powers in accordance with the principles of legal reasonableness. Relevant to this are the consequences which flow to the applicant from the pathways available to the Tribunal. Should the Tribunal proceed to dismiss the application, the applicant is left with an opportunity to present reasons for reinstatement of the Review Application; while proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before it effectively denies the applicant that opportunity.
[4] s 422B(3) of the Act
The Tribunal is required under section 2A of the Administrative Appeals Tribunal Act (‘AAT Act’), in carrying out its functions, to pursue the objective of providing a mechanism of review that is accessible; fair, just, economical, informal and quick; proportionate to the importance and complexity of the matter; and promotes public trust and confidence in the decision.
In the present case, fairness and justice have been extended to the applicant in the procedural steps detailed earlier in this decision record. Fairness and justice is reflected in the clarity in the Tribunal’s correspondence to the applicant, sent through his RMA, regarding his options for submitting additional information in support of his protection claims, the implications of failing to submit further information, what he should do on receipt of the Hearing Invitation, why he has been invited to a hearing, how to seek postponement of the hearing, and what may occur should he fails to attend a hearing. Those procedural steps were taken following a long procedural history at the Department stage which commenced at the time the PVA was lodged in April 2017, detailed earlier in this decision, in which multiple invitations were extended to the applicant to provide further information in support of his claims, both orally at a Department interview, and/or by submitting documentation to the Department.
The procedural history detailed above indicates that, notwithstanding the steps taken to facilitate fair and just participation by the applicant in the review process, he has made no demonstrated attempt to engage with the Tribunal to provide information in support of substantive protection claims made. He made no request for adjournment of his scheduled Tribunal hearing. His hearing remained open for him to participate in, with an interpreter engaged and present to assist at the hearing, until it was closed at 1:37pm on the day that it was scheduled to commence at 1:00pm. No contact has been made by or for the applicant to explain his non-attendance, to request a further hearing, or to submit further information in support of his protection claims. Considering the above factors cumulatively, I find there to be no intelligible evidence before me that the applicant has any intention or desire to engage with the Tribunal to advance the substantive protection claims he has made. In applying the objectives of s2A of the AAT Act, I consider the appropriate pathway in the present case is to promptly finalise the Review Application by making a decision on the review without taking any further action to allow or enable the applicant to appear.
ISSUES FOR DETERMINATION
Protection Visa
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. This requires the Tribunal to make findings regarding the credibility of the applicant’s claimed circumstances. Based on what the Tribunal accepts of the applicant’s circumstances, the Tribunal must determine whether the applicant meets the ‘refugee’ criterion and, if not, the ‘complementary protection’ grounds. The criteria and relevant law for a protection visa are attached.
For the reasons detailed below, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant claims to be a citizen of Bangladesh and of no other country. He submitted to the Department a copy of the biodata page of his passport, by the People’s Republic of Bangladesh in the applicant’s claimed identity in November 2013. It expired in [2018] and identifies his place of birth as Sylhet. His father is identified in it as the applicant’s emergency contact, with an address in Sylhet. On the basis of the passport copy on the Department file before me, I accept that the applicant is a national of Bangladesh and of no other country, and that his identity is as claimed.
Background and Protection Claims

The applicant’s background, as detailed in the handwritten completed PVA on the Department file, is that he was born in [Year] in Sylhet, Bangladesh, where he has been a citizen since birth. He speaks, reads and writes in the Bengali and English languages. He has never married. His family, at the time of application, comprised his father, mother, sister and [brothers], all of whom resided in Bangladesh[5]. He was in regular telephone contact with them[6]. Regarding any personal contacts in Australia, he named a “relative” born in [Year], who was also born in Sylhet[7].
[5] PVA answer 42
[6] PVA answer 44
[7] ibid
He arrived in Australia in early February 2014 on a Student visa issued in Dhaka in December 2013 (his arrival date is also stamped in the copy of his passport submitted to the Department). He last departed Bangladesh via Dhaka the day prior to his arrival in Australia. He did so legally, using his passport. His Australian Student visa was valid until January 2017. His most recent Australian visa was a Bridging visa A issued on 13 January 2017.
Regarding his movements in Bangladesh, he identifies only one address where he lived from birth until his journey to Australia, being in Sylhet[8]. He identifies no employment history in Bangladesh. His only identified employment is as [an occupation] in Victoria, commencing May 2014[9] . He identifies two years of education, undertaken at the [Institution] in Sylhet between January 2011 and June 2013[10].
[8] PVA answer 81
[9] PVA answer 84
[10] PVA answer 85
The protection claims made and arising in this case are summarised earlier in this decision. Relevant to those claims, 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 that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70.)
As detailed in the procedural history above, despite the Tribunal, and the Department before it, extending multiple invitations to the applicant to provide additional information in support of his protection claims, he has not done so. The Tribunal has assessed the Review Application on the material before it.
The Tribunal has significant concerns regarding the applicant’s protection claims and evidence. At their strongest, his claims are brief, lack detail, contain many gaps and give no timeline of any relevant events, such as when the claimed land dispute first arose. The claims rely entirely on written, untested, general assertions contained in the PVA. How the PVA was prepared and how accurately it reflects the applicant’s circumstances cannot be ascertained from the information at hand.
The information in the PVA sets out the applicant’s claimed circumstances up to the time he lodged it in April 2017. What has occurred in over 7 years since the PVA was lodged cannot be ascertained on the information available, nor can it be assumed that the circumstances relevant to the protection claims made in April 2017 have remained unchanged.
Had the applicant availed himself of the opportunity to appear before the Tribunal to give oral evidence and present arguments, the Tribunal would have had the benefit of speaking directly with him, under oath or affirmation, to obtain his immediate responses to questions regarding his circumstances and claims. The Tribunal could have explored with the applicant at hearing, aspects of his background which are not detailed in the PVA, such as his family in Bangladesh, his education and his employment. It could have explored why he lodged his PVA in 2017, some 3 years after arriving in Australia. It could have explored whether he continues to have the same fears of harm in Bangladesh now and in the reasonably foreseeable future as he claims to have had when the PVA was lodged in April 2017. It could have asked about what has happened in connection with the claimed disputed land since the applicant departed Bangladesh in 2014, some 10 years ago. Relevant to his claims that his paternal uncle was pursuing the applicant and his siblings in connection with that land dispute, the Tribunal could have asked about the circumstances of his siblings in Bangladesh and explored what harm, if any, they have suffered. Relevant to the claimed networks and connections of his paternal uncle, the Tribunal may have explored with the applicant the steps, if any, his uncle has taken to give effect to his claimed intention to take over the disputed land through those networks. These are examples only of the types of matters the Tribunal could have explored with the applicant had he availed himself of the opportunity to appear at a hearing to give oral evidence. The Tribunal cannot speculate as to the applicant’s responses regarding such matters or about his current circumstances, or about the circumstances he may find himself in in Bangladesh in the reasonably foreseeable future.
On the available information the Tribunal is unable to reach a state of satisfaction regarding the applicant’s claim that he faces a real chance of serious harm in Bangladesh for any reason. I am not satisfied, on the evidence before me, that the applicant has ever been involved in a family land dispute or that he has ever been threatened or harmed in Bangladesh in connection with any such dispute. I do not accept that he faces, now or in the reasonably foreseeable future, a real chance of threats, emotional harm, physical harm or any form of serious harm in connection with a family land dispute in Bangladesh. I am not satisfied that he faces a real chance of serious harm in Bangladesh in the reasonably foreseeable future for any reason claimed or arising on the evidence.
Findings on the Refugee Criterion
A refugee is a person who is found to have a well-founded fear of persecution in their country of reference. A fear is well-founded if there is a factual or objective basis for that fear or if there is a ‘real chance’ of it occurring. A real chance is a substantial, as distinct from a remote chance or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
As reasoned above, I am not satisfied that the applicant faces a real chance of serious harm in Bangladesh in the reasonably foreseeable future for any identifiable reason. I am not satisfied that the applicant faces a well-founded fear of persecution in Bangladesh under section 5J of the Act. It follows that I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.
Findings on Complementary Protection
Having found that the applicant does not meet the refugee criterion, I have considered whether on the evidence before me, there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Bangladesh. The threshold for assessing “real risk” is the same as for assessing “real chance”.
As reasoned above, I have found that the applicant does not face a real chance of serious harm in Bangladesh for any reason claimed or identifiable in the evidence. Based on the same factual analysis and findings, I am also not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Bangladesh, there is a real risk he will be arbitrarily deprived of his life or suffer the death penalty, or be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. I do not accept that the applicant faces a real risk of significant harm in Bangladesh for any of the reasons claimed or identifiable.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a), I have considered the alternative criterion in section 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(aa).
There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies section 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in section 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Suhad Dutra
Member
ATTACHMENT
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.
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 4088

26 September 2024

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