2218784 (Refugee)

2218784 (Refugee) [2023] AATA 1516 (3 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Tanguy Mutumba Mwilambwe
CASE NUMBER:  2218784
COUNTRY OF REFERENCE:                   Samoa/New Zealand
MEMBER:Bridget Cullen
DATE:3 May 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the Applicant a protection visa.

Statement made on 3 May 2023 at 10.39am
CATCHWORDS
REFUGEE – protection visa – Samoa/New Zealand – fear of harm from criminal gang – former member who delivered drugs and collected money – beatings and threats against family members – applied after special category visa cancelled – brief, vague and inconsistent claims and evidence – short, low-level involvement accepted – claims of higher-level membership and responsibilities implausible – no corroboration of injuries – passage of time and availability of police protection – possibility of returning to other country of citizenship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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 12 December 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 Samoa, applied for the visa on 17 October 2022. The delegate refused to grant the visa on the basis that the Applicant is not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or 36(2)(aa) of the Act.
The Applicant appeared before the Tribunal via video conference on 27 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the Applicant’s brother, [Mr A]. Although the Tribunal planned for a video-based Teams hearing, [Mr A] gave his evidence by telephone. The Applicant’s solicitor advised the Tribunal that [Mr A] preferred to appear by telephone as he was at work, and this was easier for him.
The Applicant was represented in relation to the review. The Tribunal postponed the hearing, originally scheduled for 2 February 2023 at the Applicant’s request. The purpose of the adjournment was to allow the Applicant more time to arrange for payment of monies into trust, so that he could obtain private legal assistance.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the Applicant will face harm from [a Gang] if he returns to New Zealand or Samoa and is therefore a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The Applicant is a [Age]-year-old male national of both Samoa and New Zealand who first arrived in Australia on a TR-676 Tourist visa [in] January 2006. Since then, he has left Australia several times to travel to both Samoa and New Zealand, and last arrived in Australia [in] December 2012 on a TY-444 Special Category visa.
The Applicant’s TY-444 Special Category visa was cancelled by a Departmental delegate on 30 June 2017.
The Applicant then applied for an XA-866 Protection visa on 17 October 2022.
Documents before the Tribunal
The Tribunal has before it the following documents in making its decision:
·Department file [Reference], containing all material before the Department delegate at the time of their decision
·Submissions from the Applicant’s representative
·Statutory declaration from the Applicant dated 27 February 2023
·Statutory declaration from [Mr A] (the Applicant’s brother) dated 27 February 2023
Claims
The Applicant’s claims are summarised in his visa application, the delegate’s decision and the submissions made by his representative to the Department and the Tribunal. The Applicant claims that:
·He travelled from Australia to New Zealand to visit family [in] March 2008. During this trip he was introduced to members of the [Gang].
·[In] March 2008, he visited family again in New Zealand. During this trip he was initiated into the [Gang]. During the initiation ceremony, the applicant was invited to swear an oath in front of senior gang members. The oath included pledging allegiance to the club and that the only way to leave the club was by travelling to a different country or by dying.
·[In] May 2009 the Applicant returned to New Zealand and carried out his role as a [Gang] gang member prospect for four to five months. His duties were to organise drug drop-offs and collect money for the gang. During this time the [Gang] made threats of physical harm against the Applicant’s children and family if he did not meet their demands.
·He was threatened that his family members would be harmed if he tried to contact them. On one occasion the gang leader contacted the Applicant by mobile phone and heard the Applicant’s child crying in the background. While the Applicant lied and said it was someone else’s child who was crying, the Applicant was beaten by the gang when he returned to the clubhouse.
·Gang members frequently beat the Applicant and threatened to kill or harm his family if he did not sell enough illicit substances to generate revenue for the gang.
·The [Gang] Chief of [Suburb] suburb gave orders to other gang members to punish the Applicant between two to three times a week when he was unable to generate enough revenue.
·The Applicant sustained various [injuries], but did not seek medical treatment because he feared further beatings or reprisals against his family members.
·On or around 8 September 2009, the Applicant was assisted by his elder brother [Mr A] ([Mr A] was a witness before the Tribunal) to escape the [Gang] headquarters in [Suburb], Auckland. The Applicant arranged for his brother ([Mr A]) to park near the gang’s clubhouse during a party and the Applicant then managed to leave the house by telling a gang leader that he needed to collect some money. The Applicant’s brother then drove him to the airport, and he caught a flight to Australia.
·Since this time the Applicant has not returned to New Zealand due to his genuine fear for his life.
·The Applicant visited Samoa with his parents and siblings on three occasions between December 2010 and December 2012.
·The Applicant’s family in Samoa have been impacted by his involvement with the [Gang]. The Applicant’s family have told him that they have been visited on numerous occasions by members of the [Gang] who have been looking for the Applicant. During these visits the Applicant and his family have been threatened with physical harm if he returns to Samoa.
·The Applicant sought the assistance of the New Zealand police around 2009, prior to fleeing New Zealand. However, the police asked the Applicant to provide names and he feared that this would place himself and his family in danger from the gang.
At the commencement of the hearing, the Tribunal had a discussion with the Applicant and his representative, for purposes of trying to understand the submissions that the Applicant lodged insofar as the submissions contained character references. As the Applicant’s submissions contained a reference to “Facts and Contentions”, as well as a different case reference number, the Tribunal was concerned that they may have related to cancellation proceedings rather than to the current application for a protection visa. The Tribunal wanted to make certain that it had the submissions that the Applicant intended to be filed in these proceedings.
The Applicant’s submissions included information about his relationship with his children, engagement with therapy, and community contributions, which suggested to the Tribunal that they may have been relevant to consideration of the discretionary factors that arise in deciding whether a visa should be cancelled. The Applicant’s representative told the Tribunal that this information was provided for context, and part of an effort to articulate the Applicant’s personal circumstances. The Tribunal has considered all the information before it, in the context of the relevant criteria for a Protection Visa.
The Applicant’s brother, [Mr A], gave evidence about how, when he and the Applicant were both still leaving in New Zealand, his brother had gotten “involved with the wrong crowd”. [Mr A] told the Tribunal that occasionally, he had to drive to get the Applicant in the middle of night and said that there were times he observed the Applicant to have physical injuries. When asked about these injuries, [Mr A] told the Tribunal that the Applicant would brush these questions off. Eventually, [Mr A] told the Tribunal that his brother “opened up” to him and told him where the injuries came from, and of his involvement with the “gang”. [Mr A] says that he noticed the Applicant had these injuries around 2009, up to the point in time when he helped the Applicant “escape” from the gang and travel back to New Zealand (in September of 2009).
[Mr A] concedes that the information he has about the Applicant’s involvement has been provided to him exclusively by the Applicant. He became emotional over the phone, describing the Applicant jumping through the window of the [Gang]’s Clubhouse when he was “finally able to escape”.
The Tribunal asked how [Mr A] knew where the Clubhouse was, to be able to collect the Applicant from it in the described “escape” mission. [Mr A] told the Tribunal that the Applicant occasionally would bring his [children] to visit him at his homes. During one of these visits, the Applicant gave him the Clubhouse address. The Tribunal queried why, if the was in danger and was able to reach [Mr A]’s house, he wouldn’t have left immediately from [Mr A]’s house, by going directly to the airport.
[Mr A] explained that he followed his brother’s instructions about the “escape” plan and thought perhaps the Applicant was trying to leave in a way that was not as obvious.
Following [Mr A]’s evidence, the Tribunal asked the Applicant why, if he was in fear and wanted to escape the [Gang] by travelling to Australia, he didn’t leave directly for the airport from [Mr A]’s place. The Tribunal explained that it had some questions about the alleged “escape” given that it would have appeared to be easier and safer, if the Applicant was in danger, to simply go straight to the airport from [Mr A]’s place.
In response, the said he was “watched 24-7” and said that he was “on-call 24-7” and it wasn’t an “easy thing for him to get a ticket”. He told the Tribunal that, “every Thursday”, the gang gets together and has a “drink-up” and if the “Chief gets really drunk”, he wouldn’t be “calling him up”, so they could leave for the airport then. The Applicant never explained, in a direct way, why he did not leave straight from his brother’s house to go to the airport.
The Applicant eventually said, “out of fear” it was hard for him to plan. His answers were vague, indirect, and unpersuasive. The Tribunal is prepared to accept that [Mr A] collected the Applicant from a house that the Applicant told [Mr A] belonged to the [Gang], and that [Mr A] drove him to the airport. The Tribunal otherwise does not accept the Applicant’s evidence as it does not align with common sense. If the Applicant was genuinely in fear of the [Gang], he would have taken the opportunity to leave from his brother’s place for the airport, rather than risk departing in the middle of a “drink up” being attended by gang members.
The Tribunal asked the Applicant for information about his becoming a member of the [Gang]. The Applicant said he was working for “some big people” with “[Employer]” while working for the [Gang]. The Tribunal asked the Applicant to explain his role as a “dial-up man,” in the context of his claims to have become a fully patched [Gang] member.
The Applicant provided scant, generic detail. He agreed that dial-up man was a junior role. He told the Tribunal that his cousin [Mr B] was the “middle man” – a position that allegedly contains access to more information, where one is actually in charge of “running the drugs”. Eventually, the Applicant says that he became the “middle-man” after his cousin [Mr B] found himself on the outer with the gang.
The Tribunal asked the Applicant if he was fully initiated as a [Gang], to which the Applicant told the Tribunal that he “had no choice”. He said that he was “making Chief proud with the flow of the money and the traffic” and this is why he was “made-up” after only 5-months.
The details provided by the Applicant were in all respects, vague. The delegate’s decision record, provided to the Tribunal by the Applicant, reflects that the Applicant was only in New Zealand for a period of a few months in 2008 and 2009. The delegate considered the timeline of the Applicant’s claimed involvement with the [Gang] in New Zealand and concluded that a few months in New Zealand would not have been adequate time for the Applicant to have engaged in all the activity that he claims transpired.
The Tribunal does not accept that the Applicant was a patched [Gang] member. The Applicant has no corroborating evidence of his claims. The Applicant’s brother’s evidence is not based on firsthand knowledge but is based on information that the Applicant has given to him. The Tribunal understands that [Mr A] would want to believe his brother but thinks that the information he has been provided with is of an unreliable hearsay nature.
The Applicant claimed, in his Application to the Department, that he suffered [injuries], but that he did not seek medical treatment because he feared further beatings or reprisal against his family. The Tribunal considers this unlikely, particularly given the short time frame within which the events are alleged to have happened. There is no corroborating medical evidence supporting the existence of any injuries.
The Tribunal also thinks it entirely implausible that, on one hand the Applicant was being routinely beaten by the gang, and then also simultaneously being elevated within the [Gang]’s leadership structure by being patched within such a short period of time that, according to the Applicant, other gang members were jealous of his success. The Applicant was invited to comment on this potential inconsistency in his story but did not offer any direct explanation. It is the Tribunal’s view that the Applicant’s story is nearly entirely contrived.
The Tribunal is prepared to accept that the Applicant may have been involved in illegal drug activity, and that this may have put him in contact with some [Gang] members for a short duration in 2008 and 2009.
The Tribunal asked the Applicant why, after such a lengthy period, he would be in danger if he returned to New Zealand, as he would no longer have compromising knowledge about the locations of any drug houses or dealers. The Applicant did not provide particulars but told the Tribunal that you can only leave the [Gang] “in a box or on a plane”.
The Tribunal asked the Applicant why, if he were to return to New Zealand, he could not obtain protection from the police. The Applicant told the Tribunal that he couldn’t just “call the police” and that this was “out of fear”. He then told the Tribunal about a time that the police engaged with him, and let him go, while he was allegedly involved in unlawful activity. The Tribunal pointed out that this was different from his seeking protection where he was behaving lawfully. The Applicant then told the Tribunal that, “I can’t answer that. I don’t know what the police would do, if the police is even enough.”
The Tribunal does not accept that the Applicant would be unable to obtain police protection from the New Zealand police force, were he to seek out assistance in circumstances where he was in danger, given that New Zealand has a criminal justice system that has met or surpassed international standards, as well as an independent judiciary.[1]
[1] Freedom House, Freedom in the World 2016 in relation to New Zealand, 12 August 2016.
Although the Applicant turned most of his focus to events involving New Zealand, and his concerns about returning there, the Tribunal must consider whether the Applicant would also be unable to return to Samoa.
The Applicant confirmed that he is a citizen of Samoa and could reside in Samoa if he chose to. The Tribunal accepts that the Applicant is a Samoan citizen, with the right to reside in Samoa.

The Tribunal asked the Applicant to explain why, if he could not return to New Zealand, he could not return to Samoa. On being asked this straightforward question, the Applicant then turned to his representative, and said, “Can you help me with this question” and said that “we are discussing it”.
The Tribunal appreciates the important role representation plays to applicants before Tribunals and Courts but does find the Applicant’s initial response somewhat surprising. The Tribunal is not privy, as is appropriate, to any discussions the Applicant may have had with his representative about his prospects of success in a protection visa application where he does not need to return to New Zealand, as he is a dual citizen entitled to reside in another country, in this case Samoa.
The Tribunal asked the Applicant to articulate the basis of his fear in returning to Samoa. He told the Tribunal that Samoa is a religious culture, and that he would place a burden on his family in Samoa. He said that he does not have family in Samoa who will accept him.
The Applicant told the Tribunal that the “main reason” he can’t go is that he has been “cast out” by his family. He says the [Gang] are a problem in Samoa also, given “Samoa is close to New Zealand” and that “Members turn up and ask questions about him”. The Tribunal asked the Applicant what he meant in his statement, where he said that his family had been threatened in Samoa. The Applicant said that messages had been sent via social media.
The Tribunal does not accept that the Applicant, or his family in Samoa, have been threatened in any way, should the Applicant return to Samoa.
Having considered all of the Applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the Applicant as contained in his application, the Tribunal finds that there is no real chance that the Applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to New Zealand or Samoa now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the Applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion, or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to New Zealand or Samoa. Accordingly, the Tribunal finds that he does not satisfy the criterion in s 36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia, there is a real risk that he will suffer significant harm?
The Tribunal has considered the Applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the Applicant will suffer significant harm for any of the reasons claimed if he returns to New Zealand or Samoa now or in the reasonably foreseeable future.
Having considered all of the Applicant’s claims, individually and cumulatively, and all the evidence and country information, as well as having considered the personal circumstances of the Applicant as contained in his application, and taken into account the above findings, the Tribunal is not satisfied that the Applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to New Zealand or Samoa now or in the reasonably foreseeable future.
Accordingly, and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to New Zealand or Samoa, there is a real risk that he will suffer significant harm as defined in s 36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s 36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the Applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the Applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to New Zealand or Samoa that there is a real risk that he will suffer significant harm.
Overall conclusion:
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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the Applicant a protection visa.
Bridget Cullen
Senior 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 1516

3 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice