2300046 (Refugee)
[2025] ARTA 1372
•7 March 2025
2300046 (REFUGEE) [2025] ARTA 1372 (7 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Michael Terence Jones
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Numbers: 1836311
2015166
2300046Tribunal:General Member R Da Costa
Date:7 March 2025
Place:Sydney
Decision:In respect of matter 1836311, the Tribunal sets aside the decision to refuse the applicants Safe Haven Enterprise visas made on 19 June 2017 and substitutes it with a decision that the visa applications were not valid.
In respect of matter 2300046, the Tribunal sets aside the decision to refuse the applicants Safe Haven Enterprise visas made on 20 December 2022 and substitutes it with a decision that the visa applications were not valid.
In respect of matter 2015166, the Tribunal sets aside the decision under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the second named applicant meets s 36(2)(a) of the Migration Act; and
(ii)the first and fourth named applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.
The Tribunal affirms the decision not to grant the third named applicant a protection visa.
Statement made on 07 March 2025 at 1:08pm
CATCHWORDS
REFUGEE – Protection Visa – Albania – religion – Catholic – Muslim – fear of serious harm from applicant’s family – interfaith marriage – physical and verbal abuse from father and brother – membership of a particular social group – women who have entered an interfaith relationship against the wishes of their family – would face a real chance of serious harm regardless of where she lived in Albania – real chance of persecution relates to all areas of Albania – applicant has a well-founded fear of persecution – membership of the same family unit – the third applicant is now an Australian citizen – decision under review set aside and substituted with a decision that the visa applications were not valid for 1836311 and 2300046 – decision under review set aside and remitted for 2015166
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 45, 65, 499
Migration Regulations 1994, rr 1.03, 1.12, 2.08, Schedule 2
CASES
DBB16 v MIBP (2018) 260 FCR 447
MICMSMA v CBW20 [2021] FCAFC 63
MIMA v Respondents S152/2003 (2004) 222 CLR 1Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATIONS FOR REVIEW
This is a combined decision record in respect of three related applications for review. The applicants have consented to the Tribunal producing a combined decision record for these matters.
The decisions are in respect of the following applications for review.
Case number 1836311: this is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (as the Minister then was) on 19 June 2017 to refuse to grant Mr [A], Ms [B] and Master [C] protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The decision is in respect of Safe Haven Enterprise visas (SHEV) which the applicants applied for on 4 November 2016. They applied to the Tribunal for review of the delegate’s decision on 11 December 2018. For the reasons explained below, the Tribunal finds that these visa applications were not valid.
Case number 2015166: this is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 September 2020 to refuse to grant the applicants protection visas under s 65 of the Act. The applicants applied for Protection (Class XA) visas on 6 September 2013. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth) (the Regulations), from 16 December 2014 the applications are taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas and are taken not to be, and never to have been, valid applications for Protection (Class XA) visas. A delegate refused to grant the visas on 18 September 2020. The applicants applied to the Tribunal for a review of the delegate’s decision on 12 October 2020. The Tribunal finds these visa applications, which are the original visa applications, to be valid and so this is the case in which the Tribunal has made substantive findings about the applicants’ claims for protection below.
Case number 2300046: this is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 2022 to refuse to grant [Mr A] and [Ms B] protection visas under s 65 of the Act. The decision is in respect of SHEVs which the applicants applied for on 24 March 2021. [Mr A] and [Ms B] applied to the Tribunal for review of the delegate’s decision on 3 January 2023. For the reasons explained below, the Tribunal finds that these visa applications were not valid.
In each case, the delegate refused to grant the visas on the basis that the applicants in question are not persons in respect of whom Australia has protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceedings before 14 October 2024 is taken to have been done by the Tribunal.
The family of applicants
Mr [A] is a [age]-year-old citizen of Albania. Ms [B] is a [age]-year-old citizen of Albania. They married in Australia on [date] November 2013. Master [C] is their [age]-year-old son who was born in Australia. As discussed below, [Master C] is now an Australian citizen. Master [D] is their [age]-year-old son who was born in Australia. He is a citizen of Albania. The applicants’ nationalities, identities and relationships to each other are not in dispute.
Master [C]
Master [C] was born in Australia on [date] and remains in Australia. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This criterion must be satisfied at the time of the Tribunal’s decision. If an applicant is now an Australian citizen and therefore not a non-citizen, they would not satisfy s 36(2). The Tribunal has received evidence[1] that [Master C] has acquired Australian citizenship. The Tribunal accepts this. It follows that [Master C] does not satisfy the requirements of s 36(2). As a result, it is not necessary for the Tribunal to consider and make substantive findings about [Master C]’s claims for protection.
CLAIMS AND EVIDENCE
[1] Letter of confirmation from the applicants’ representative dated 14 February 2025.
Background
[Mr A] and [Ms B] have given consistent evidence over time about the circumstances that led to them leaving Albania and coming to Australia and lodging protection visa applications. Based on all the information before the Tribunal, the Tribunal accepts that the relevant background is as follows.
[Mr A] is from a Muslim family in Albania. His family moved to a town on the outskirts of the capital, Tirana, when he was about [age] years old. They still live there as far as he knows. [Mr A]’s father has passed away, but he still has his mother, two sisters and three brothers. He followed Islam when he was young, but after the age of about [age] he did not practise, although he still considers himself to be a Muslim. From 2010, he was self-employed in Tirana running his own [business].
[Ms B] is from a strict, religious Catholic family in the north of Albania and grew up in a village near a town called [Town 1]. She has her parents and a younger brother. [Mr A] and [Ms B] met when he was working in Tirana and she was studying at the university there. [Ms B] lived in rented student accommodation during the week and would travel back to her family home on weekends. [Ms B] kept her relationship with [Mr A] a secret from her family because she knew they would not approve of her having a boyfriend, particularly one who was a Muslim. [Mr A] proposed to [Ms B] on her birthday in November 2011. [Ms B] was so happy about this and thought her parents would approve because she was going to get married, so she decided to travel home to tell her parents. Her mother was extremely upset and when her father found out, he was furious. [Ms B]’s parents detained her in the family home and would not let her leave. She was detained for about three months. During this time, she was physically assaulted by her father, including being beaten, having her hair pulled, being spat at and emotionally abused, including being told that her brother and cousins had killed [Mr A] (which was not true), being told by her father that they would break her spirit, and being told that she had shamed the entire family. Her younger brother and an uncle were also part of this mistreatment.
During this time, [Mr A] repeatedly called [Ms B]’s phone, but it would be answered by her father and they would argue. [Ms B]’s father told [Mr A] to leave [Ms B] alone and threatened him. At one stage, [Mr A] told [Ms B]’s father where he worked and suggested they talk face to face and try to be reasonable. Sometime after this conversation, [Ms B]’s brother and cousins turned up at [Mr A]’s work, assaulted him, threatened him and pointed a gun at him.
One Sunday morning, in about February 2012, when [Ms B]’s family had gone to church, she noticed that the door was unlocked at her house and so she grabbed some money, left the house and ran away to Tirana. She didn’t take anything else with her because she was in such a hurry to leave. When she arrived in Tirana, she contacted [Mr A] by phone and he came and picked her up. She also contacted a friend from university who let her stay in a room in her apartment. From that time on, [Ms B] kept an extremely low profile in Tirana, trying to hide from her family, mainly staying inside the apartment and only going to university on foot when she had an assessment because she wanted to try to complete her [degree]. [Mr A] continued with his work, trying to appear normal, sometimes staying at the apartment and sometimes staying at his family home. He did not tell his family what was going on because he was worried his brothers might escalate the situation. A few weeks after [Ms B] ran away, her brother and cousins came to [Mr A]’s work again and threatened him and demanded to know where [Ms B] was. [Mr A] said he did not know. After that, [Mr A] and [Ms B] were both scared, kept a very low profile and started to put a lot of effort into finding a way to get out of Albania.
[Ms B] and [Mr A] stayed in Tirana for about one year while they planned how to get away from Albania. They wanted to get as far away as possible, which is why they ended up in Australia. They did not want to go to Europe because they felt that was too close and Albanians are not welcome. They travelled out of Albania several times to [other countries] to meet with people who could potentially help them, but they found those people untrustworthy. Eventually, they met someone who was able to assist them to come to Australia. They left Albania in early March 2013 and arrived in Australia by boat at Ashmore Reef later the same month.
The last time [Ms B] had any contact with her immediate family was when she called her mother briefly from Darwin and told her she was in Australia, she was safe and not to look for her. Prior that, the last contact she had was before she ran away from home in early 2012. [Mr A] has had intermittent contact with his family since arriving in Australia. The last time was around 2022. None of his family know the full details of his situation. [Ms B] has an aunt (her mother’s sister) who lives in [a country] with whom she has remained in sporadic contact and has received some information about her family from time to time. This is referred to in more detail below.
In Australia, [Ms B] continues to practise her Catholic faith and her children are being raised as Catholics. [Mr A] has not converted to Catholicism but he regularly attends church with his wife and children and is supportive of their religious faith.
Evidence before the Tribunal
Claims for protection
[Mr A] and [Ms B] claim they fear serious harm from [Ms B]’s family if they return to Albania because [Ms B]’s family is opposed to their interfaith marriage. They fear that [Mr A]’s return could trigger a blood feud between their families. [Mr A] and [Ms B] also fear that their children will be harmed as part of this.
Evidence before the Tribunal
The Tribunal has considered all the evidence on the three case files which relevantly includes:
· correspondence and written submissions from the applicants’ representatives;
· various written statements made over time from [Mr A] and [Ms B] about events in Albania;
· documents proving the marriage of [Mr A] and [Ms B] and the births of their children;
· letter dated 29 September 2017 from [Ms B]’s aunt;
· recordings of multiple interviews which the applicants have undertaken with different Departmental officers and delegates since arriving in Australia in respect of their protection visa applications;
· country information relating to blood feuds and domestic violence in Albania.
The delegate’s decisions
In each of the applicants’ cases, the delegates have made decisions finding the applicants are not persons in respect of whom Australia has protection obligations. The delegates found the applicants to be broadly consistent in their evidence but found that they had exaggerated the nature of the threat to them from [Ms B]’s family if they returned to Albania. The delegates found that if [Ms B]’s family had wanted to find and harm her and [Mr A] while they were living in Tirana, they had the opportunity to do so but they did not do so. The delegates found that based on the evidence, [Ms B]’s family had disowned her and were no longer interested in harming her. Therefore, the delegates found that the applicants are not persons in respect of whom Australia has protection obligations.
The hearings
On 13 January 2025, the Tribunal held a case management hearing to discuss the applicants’ cases. In particular, the Tribunal discussed with them its potential findings in relation to the validity of their various protection visa applications and the reasons for this. The applicants and their representative indicated to the Tribunal that they were comfortable with the Tribunal’s proposed approach.
[Mr A] and [Ms B] appeared before the Tribunal on 21 February 2025 to give evidence and present arguments about their substantive claims for protection. The Tribunal arranged for the hearing to take place during school hours because it did not consider it necessary or appropriate for their children to attend. An Albanian interpreter was available to assist [Mr A] and [Ms B] in the hearing but both of them speak fluent English and did not require the assistance of the interpreter.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law - case number 2015166 – [Mr A] and [Ms B]
[Mr A] and [Ms B] lodged their protection visa applications on 6 September 2013. The relevant law that applies to their applications is summarised below.
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to 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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s 91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s 91R(1)(b)), and systematic and discriminatory conduct (s 91R(1)(c)). Examples of ‘serious harm’ are set out in s 91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s 91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial 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.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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 a protection 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 the applicant 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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
The relevant law – case number 2015166 – [Master D]
[Master D]’s protection visa application was made on 9 May 2018, which is the date he was born. The relevant law that applies to his application is summarised below.
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.
Analysis, reasons and findings – case number 2015166
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
The Tribunal spoke to [Mr A] and [Ms B] separately in the hearing. In the hearing, [Mr A] gave evidence that was largely consistent with evidence he has given in the past about events in Albania. The Tribunal has read all his written statements and listened to recordings of all the interviews he has given. While there are aspects of [Mr A]’s evidence that have changed slightly over time, the essence of his story has remained the same. The Tribunal considers that the changes in his evidence are not because he is trying to embellish or alter his claims and evidence, but rather, are due to the fact that he has had to tell his story many times over a 12 year period and over this time, his recall of actual memories of events and the recounting of his story have become blurred. In any event, the changes or differences in his evidence are not material to the outcome.
In the hearing, soon after commencing giving evidence, [Ms B] requested to speak to the Tribunal alone without her representative or the interpreter. [Ms B] then explained to the Tribunal that there were matters she wanted to raise which she had never felt comfortable raising in previous interviews because of the way those interviews were conducted and/or the people present. [Ms B] then recounted to the Tribunal a far more extensive history about the dynamics within her family growing up than she had ever provided to the delegates,[2] and which she said she had not previously shared with anybody.
[2] The Tribunal has listened to recordings of all Ms [B]’s interviews.
The Tribunal found [Ms B]’s new evidence to be credible and distressing and the Tribunal finds [Ms B]’s reasons for not disclosing it earlier to be entirely reasonable and understandable. The effect of this evidence, which the Tribunal does not propose to refer to in detail, casts what happened to [Ms B] while she was essentially detained at home against her will for three months before escaping, in a very different light. It suggests that the way she was treated during that time by her father, brother and other male relatives was not a one-off extreme reaction to her engagement, but part of a continuum of abuse and control which had been going on since she was a child, and which also affected her mother. The Tribunal notes [Ms B] said she thinks she was able to escape from the family home on the morning she did, because her mother deliberately left the door unlocked while she and the rest of the family went to church.
[Ms B] has consistently maintained that her family, or at least the male members of her family, including her father and brother, will never forgive her for what she did and that they would seriously harm her if she returned to Albania regardless of the length of time that has passed because she has brought dishonour to the family and shamed them. In the Tribunal’s view, it seems there is also an element of the male members of [Ms B]’s family wishing to control her as a woman, which is also relevant to the assessment of her claims. [Ms B] told the Tribunal that she considers it was only a matter of time before her male relatives found her in Albania and harmed her, which is why she and [Mr A] looked for ways to leave as soon as they were able. [Ms B] does not accept that her family gave up on looking for her fairly soon after she ran away. In light of Mr [B]’s additional evidence, the Tribunal is prepared to accept this and understands why she maintains her fear of returning to Albania. The fact that she and [Mr A] decided to come to Australia, which in her mind was as far away from Albania as possible, makes sense to the Tribunal in the context of her evidence.
[Ms B]’s additional evidence also casts the evidence from her aunt in a different light. Previously, in context, it appeared that the aunt’s evidence was, perhaps, embellished and provided by a sympathetic family member in an effort to bolster [Ms B]’s claims for protection. In light of [Ms B]’s additional evidence in the hearing, the Tribunal finds that the aunt’s evidence is credible, more recent than [Ms B]’s own evidence about her family’s ongoing attitude towards her, and corroborates [Ms B]’s evidence and fears about what might happen to her and her family on return to Albania and the reasons for this. In her letter dated 29 September 2017, [Ms B]’s aunt provides the following relevant information:
· the last time she visited Albania she raised the question of what would happen if [Ms B] returned home. [Ms B]’s mother said it would be impossible, [Ms B] is no longer her daughter and one day she will pay for what she did (running away with a Muslim man);
· the way the family, and in particular the uncles, spoke about [Ms B] scared the aunt to the extent that she felt she should never raise the topic of [Ms B] again or she would end up estranged from the family;
· the family are religious fanatics and will never accept the situation;
· [Ms B] and her family would be in danger if they returned to Albania.
In her interview with the delegate in 2022, [Ms B] said she had very recently spoken to her aunt. She explained they spoke from time to time. [Ms B] said her aunt told her about the most recent time she visited [Ms B]’s family in Albania. Her aunt said that [Ms B]’s father was going crazy and had suffered a heart attack. Her aunt mentioned [Ms B] to the family and [Ms B]’s father put a knife to her throat and kicked her out of the house. [Ms B]’s aunt said the situation is still dangerous, [Ms B]’s father is hurting her mother and [Ms B]’s brother accused [Ms B] of destroying the family and he threatened to find [Mr A] and kill him. The Tribunal is prepared to accept this evidence as credible.
The Tribunal understands why the delegates found the way they did about [Ms B]’s claims and evidence based on the evidence before them at the time, but in light of [Ms B]’s additional evidence, the Tribunal has formed a different view.
Does [Ms B] satisfy the refugee criterion for protection?
For the reasons explained above, the Tribunal accepts that [Ms B]’s family, and in particular the male members of her family, continue to hold a strong grudge against [Ms B] due to the fact that she became engaged to, and then ran away with, [Mr A] who is a Muslim, that she disobeyed them in many ways by doing this and they consider she brought shame to the family. The Tribunal accepts that [Ms B] genuinely fears harm on return to Albania arising from these circumstances.
The Tribunal is satisfied that [Ms B] is a citizen of Albania and she is outside her country of nationality.
The Tribunal finds that if [Ms B] returned to Albania in the reasonably foreseeable future, there is a real chance that she would be harmed by her family, including her father and brother and extended male relatives. The Tribunal finds that the harm she would face would include verbal threats and physical harm such as being beaten, as she experienced in the past, and she would possibly be killed. The Tribunal finds that this amounts to serious harm. In light of the evidence before it, the Tribunal does not consider the chance of this to be remote or far-fetched.
[Ms B] fears persecution in Albania for reason of her marriage to [Mr A]. The Tribunal has considered whether [Ms B] is a member of a particular social group which can be described as ‘women who have entered an interfaith relationship against the wishes of their family.’
The meaning of the expression ‘for reasons of ... membership of a particular social group’ was considered by the High Court in Applicant A’s case and also in Applicant S. In Applicant S Gleeson CJ, Gummow and Kirby JJ gave the following summary of principles for the determination of whether a group falls within the definition of particular social group at [36]:
… First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A, a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". …
Whether a supposed group is a ‘particular social group’ in a society will depend upon all of the evidence including relevant information regarding legal, social, cultural and religious norms in the country. However, it is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be for reasons of the person’s membership of the particular social group.
Based on the country information referred to above, the Tribunal accepts that ‘women who have entered an interfaith relationship against the wishes of their family’ is a particular social group, as the characteristic of being a woman who has entered an interfaith relationship in Albania against the wishes of their family is common to all members of the group and [Ms B] shares this characteristic. The characteristic distinguishes the group from society and the common characteristic is not the shared fear of persecution.
Based on the Tribunal’s findings, the Tribunal finds that [Ms B] fears being persecuted for reasons of her membership of a particular social group, namely, women who have entered an interfaith relationship against the wishes of their family, and there is a real chance she would be persecuted for this reason if she returned to Albania in the reasonably foreseeable future.
The Tribunal has considered whether the real chance of persecution relates to all areas of Albania. The UK Home Office Country Policy and Information Note Albania: Blood feuds[3] states that in general, ‘internal relocation is likely to be viable but depends on the facts of the case’. While there is no suggestion that there is an active blood feud on foot between the families of [Ms B] and [Mr A], the Tribunal considers the analysis of relocation in the context of a blood feud, which is effectively families taking revenge against each other due to a dispute involving honour, to be broadly relevant to [Ms B]’s situation. The Home Office Note explains that Albania is a small country, with a small population and the risk depends on a person’s ability to be traced in Albania. [Ms B] has given evidence that her family has connections to the Albanian police force and the Tribunal accepts this. The UK Home Office Blood Feuds Note refers to sources who say Albania is a small country where everybody knows everybody and there is little opportunity to hide and create a new life.[4] The Tribunal considers that if [Ms B] and her family returned to Albania, they would be noticeable as an inter-faith couple with two Australian-born boys who are unfamiliar with life in Albania and people would be curious about them and their background. The Tribunal is prepared to accept that there is a real, rather than remote, chance that in time, [Ms B]’s and [Mr A]’s presence in Albania would become known to her family and that once that occurred, she would face a real chance of serious harm regardless of where she lived in Albania. Therefore, the Tribunal finds the real chance of persecution relates to all areas of Albania.
[3] July 2024 (UK Home Office Blood Feuds Note).
[4] UK Home Office Blood Feuds Note, pp 52 – 53.
The Tribunal is satisfied that the persecution will be directed at [Ms B] for the essential and significant reason of her membership of the particular social group identified above, it involves serious harm to her and it involves systematic or discriminatory conduct in the sense that it is deliberate or intentional rather than random or accidental, and it is for a Convention reason.
The Tribunal accepts that [Ms B] has modified her behaviour in the past in Albania to conceal her whereabouts and that she would feel compelled to do this again, and to try to conceal her identity and background, if she returned to Albania. According to the High Court’s decision in S395/2002 v MIMA,[5] in considering whether an applicant’s fear of persecution for a Convention reason is well-founded, the Tribunal needs to consider what an applicant claims they would or would not do if they returned to their country and whether their actions are motivated by a fear or threat of persecution. The Tribunal must consider whether the fear of persecution held by the applicant is the fear that, unless they act to avoid the harmful conduct, they will suffer harm. In such cases, it can be the threat of serious harm that constitutes the persecution.[6] In the case of [Ms B], the Tribunal accepts that she would attempt to conceal her whereabouts, identity and background if she returned to Albania and she would modify her behaviour in this way because she fears serious harm from her family if she is found by them. The Tribunal has found above that [Ms B] faces a real chance of serious harm and so it finds her fear of persecution is well-founded.
[5] S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
[6] S395, [43].
The Tribunal has considered whether the Albanian authorities are willing and able to protect [Ms B] from the persecution by her male relatives described above. Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
The UK Home Office Country Policy and Information Note Albania: Actors of Protection[7] says that, in general,
‘Albania takes reasonable steps to prevent persecution by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution and a person is generally able to access the protection. As such, the state is both willing and able to offer sufficient protection to persons fearing non-state … actors.’[8]
[7] February 2025 (UK Home Office Actors of Protection Note).
[8] UK Home Office Actors of Protection Note, p 4.
In relation to the police, this same Note states that ‘whilst instances of corruption, misconduct and inefficiency have been reported, the scale and extent of these issues do not, in general, indicate a police system that is unwilling or unable to offer effective protection.’[9] The Note goes on to refer to the Albanian government’s efforts to reform the police force, including ‘an integrity verification process in December 2023 which is designed to address criminal infiltration and corruption within the police’ and that the measures taken have led to an increase in arrest and investigation of police officers.
[9] UK Home Office Actors of Protection Note, 2.1.8
The Tribunal has also considered the European Commission Albania Report 2024 (EC Report)[10] which was produced in the context of Albania being a candidate State for accession to the European Union. The EC Report refers to political interference and corruption in the Albanian judicial system and further measures needing to be taken in relation to corruption in the police force. It states that ‘police remain highly vulnerable to corruption, and accountability remains weak, despite some anti-corruption efforts’ and it refers to a ‘high level of criminal infiltration and corruption in police ranks.’[11] The US Department of State 2023 Country Reports on Human Rights Practices: Albania[12] says ‘there are serious problems with the independence and integrity of the judiciary; with corruption in government, law enforcement, and municipal institutions; and with a lack of independent media.’ It says that police corruption is a problem and ‘most prevalent among front-line police.’
[10]
[11] EC Report, pp 33 – 34.
[12]
The UK Home Office Country Policy and Information Note Albania: Domestic violence against women[13] states at 2.4.2 – 2.4.3 that in Albania, ‘patriarchal socio-cultural norms of gender roles still exist in some areas of society. Traditional attitudes towards the role of women in the home and family, especially in rural areas, also remain…’. It goes on to refer to a 2018 report which found that 47% of women surveyed had experienced intimate partner violence in their lifetime. The EC Report refers to the need to strengthen the framework to deal with gender-based violence in Albania. It says at page 39 that,
‘Violence against women and girls remains a pressing issue that needs to be addressed. The continued high number of femicides per capita is still a serious concern. Enforcement by police of protection orders remains insufficient, resulting in impunity of violence. The weak accountability of police in handling cases of violence against women is a concern.’
[13] December 2022.
In light of the country information referred to above the police, corruption and violence against women, and the fact that [Ms B] has a family member in the Albanian police force, the Tribunal finds that effective protection measures would not be available to [Ms B] and the Albanian State would not be able to provide her with the level of protection she is entitled to expect, or a level of protection against persecution that would be sufficient to reduce the chance of her facing serious harm to less than a real chance.
Accordingly, the Tribunal finds that [Ms B] is outside the country of her nationality and, owing to a well-founded fear of persecution, she is unable or unwilling to avail herself of the protection of that country. Therefore, the Tribunal finds that she meets the definition of refugee in Article 1A(2) of the Refugees Convention.
As [Ms B] meets the definition of refugee in Article 1A(2), the Tribunal is satisfied that she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that [Ms B] meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether she meets the alternative criterion in s 36(2)(aa).
Member of the same family unit – [Mr A]
Sections 36(2)(b) and (c) of the Act provide as an alternative criterion for a protection visa that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include spouse. The Tribunal has considered whether [Mr A] is a member of the same family unit as [Ms B] at the time of decision.
On the information before the Tribunal, the Tribunal is satisfied that [Mr A] is the spouse [Ms B]. Accordingly, the Tribunal is satisfied that [Mr A] is a member of the family unit of [Ms B] as defined under reg 1.12(1)(a) of the Regulations. Therefore, the Tribunal finds [Mr A] satisfies sub-section 5(1) and he is a member of the same family unit as [Ms B].
Findings in respect of [Mr A]
For the reasons given above the Tribunal is satisfied that [Ms B] is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied on the evidence before it that [Mr A] is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, as the Tribunal has found [Mr A] to be a member of [Ms B]’s family unit, the fate of his application depends on the outcome of [Ms B]’s application. It follows that [Mr A] will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
Member of the same family unit – [D]
As referred to above, ss 36(2)(b) and (c) of the Act provide as an alternative criterion for a protection visa that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include ‘dependent child’.
On the information before the Tribunal, the Tribunal is satisfied that [D] is the child of [Mr A] and [Ms B] and he has not turned 18. Accordingly, the Tribunal is satisfied that [D] is a dependent child of [Ms B] pursuant to reg. 1.03 and he is a member of the family unit of [Ms B] as defined under reg 1.12(4)(b) of the Regulations. Therefore, the Tribunal finds [D] satisfies sub-section 5(1) and he is a member of the same family unit as [Ms B].
Findings in respect of [Master D]
As noted above, [Master D]’s protection visa application was made in 2018 on the day he was born, which means the relevant law applying to his protection visa application is different from the law applying to his parents who lodged their protection visa applications in 2013. In particular, there is a difference in the law around whether a person is a refugee for the purposes of s 36(2)(a).
As set out above, the Tribunal is not satisfied on the evidence before it that [Master D] is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, as the Tribunal has found [Master D] to be a member of [Ms B]’s family unit, the fate of his application depends on the outcome of [Ms B]’s application.
The Tribunal has considered whether [Ms B] meets the relevant criterion for the grant of a protection visa under the same law that applies to [Master D]’s protection visa application. This is because s 36(2)(b)(i) provides that a criterion for a protection visa is that the applicant for the visa (in this case [Master D]) is a non-citizen in Australia who is a member of the same family unit as a non-citizen who is mentioned in paragraph 36(2)(a) (in this case [Ms B]). Therefore, the Tribunal has to determine whether [Ms B] is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because she is a refugee (s 36(2)(a)), and refugee is defined in s 5H(1).
Based on the Tribunal’s reasons and findings above and the country information referred to, the Tribunal finds there is a real chance that if [Ms B] returns to Albania she faces harm in the form of verbal and physical abuse and, possibly, death. The Tribunal finds that this harm amounts to serious harm to her in the form of significant physical ill-treatment and a threat to her life or liberty. The Tribunal finds that [Ms B] fears being persecuted for reason of her membership of the particular social group of ‘women who have entered an interfaith relationship against the wishes of their family’, that the persecution will be directed at [Ms B] for the essential and significant reason of her membership of this particular social group, and that the persecution involves systematic and discriminatory conduct in that it is deliberate or intentional. The Tribunal finds that the real chance of persecution relates to all areas of Albania. The Tribunal finds that effective protection measures are not available to [Ms B] in Albania because she cannot access the protection and the protection is not durable. The Tribunal finds that [Ms B] could not take reasonable steps to modify her behaviour so as to avoid a real chance of persecution in Albania because hiding her whereabouts would not be reasonable and concealing her identity and background would require her to conceal an innate or immutable characteristic about herself. The Tribunal finds there are no reasonable steps [Ms B] could take to modify her behaviour and reduce the chance of her being found and suffering serious harm to less than a real chance.
The Tribunal finds that [Ms B] is outside the country of her nationality and, owing to a well-founded fear of persecution, she is unable or unwilling to avail herself of the protection of that country. Therefore, the Tribunal finds that she meets the definition of refugee in s 5H(1) of the Act.
As [Ms B] meets the definition in s 5H(1), the Tribunal is satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found [Master D] to be a member of [Ms B]’s family unit, the fate of his application depends on the outcome of [Ms B]’s application. It follows that [Master D] will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
Conclusion – case number 2015166
For the reasons given above the Tribunal is satisfied that the second named applicant, Ms [B], is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
The Tribunal is not satisfied that the other applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the first named and fourth named applicants, Mr [A] and Master [D], are members of the same family unit as the second named applicant for the purposes of s 36(2)(b)(i). As such, the fate of their applications depends on the outcome of the second named applicant’s application. It follows that Mr [A] and Master [D] will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
CASE NUMBER 1836311
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (as the Minister then was) on 19 June 2017 to refuse to grant Mr [A], Ms [B] and Master [C] protection visas under s 65 of the Act.
According to Departmental records, [Mr A] and [Ms B] arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] March 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, none of the applicants was a ‘fast track applicant’ (as then defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa was a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal when the review applications were lodged on 11 December 2018.
[Mr A] and [Ms B] were granted Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visas on 4 September 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
On 6 September 2013, the applicants made an application for permanent Protection visas (Class XA) (the first visa application). This was initially considered to be an invalid visa application due to the operation of s 91K. The applicants then applied for SHEVs on 4 November 2016 (the second visa application), which was purportedly refused by a delegate on 19 June 2017. An application for review of that decision was made on 11 December 2018.
As a result of the Full Federal Court’s judgments in DBB16 and CBW20, the applicants’ first visa application was in fact valid at the time it was made (case number 2015166). As the Minister (or a delegate) had not made a decision in relation to the first visa application under s 65 of the Act by 16 December 2014, it converted to an application for a Temporary Protection visa on that date (reg 2.08F of the Regulations and s 45AA of the Act).
It is a requirement for a valid application for a SHEV that, either: (i) the applicant has not made a valid application for a Temporary Protection visa; (ii) if they have made a valid application, that application has been refused or withdrawn; (iii) a Temporary Protection visa has been granted; or (iv) the application for the SHEV is made at the same time as an application for a Temporary Protection visa (item 1404(3)(f) of Schedule 1 to the Regulations). As the first visa application converted to a valid application for a Temporary Protection visa on 16 December 2014, and that application was not refused or withdrawn when the second visa application was made, the alternative application requirements in item 1404(3)(f)(a) and (ii) were not met. There is no evidence before the Tribunal that the applicants met the other alternative requirements in item 1404(3)(f)(iii) or (iv). This means that the applicants did not satisfy the requirements in item 1404 of Schedule 1 to the Regulations for making a valid visa application. Accordingly, the Tribunal must set aside the delegate’s decision refusing to grant the applicants SHEVs and substitute it with a decision that the visa applications are invalid.
CASE NUMBER 2300046
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 2022 to refuse to grant [Mr A] and [Ms B] protection visas under s 65 of the Act.
According to Departmental records, [Mr A] and [Ms B] arrived in Australia by sea at the Territory of Ashmore and Cartier Islands on [date] March 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of the Act). Accordingly, none of the applicants was a ‘fast track applicant’ (as then defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa was a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal when the review applications were lodged on 3 January 2023.
[Mr A] and [Ms B] were granted Temporary Safe Haven (Subclass 449 - Humanitarian Stay (Temporary)) visas on 4 September 2013. At the time, this was thought to trigger a statutory bar in s 91K which prevents certain visa applications being made in Australia by an applicant who was an unauthorised maritime arrival at that time. However, as determined by the Full Federal Court in MICMSMA v CBW20 [2021] FCAFC 63, s 91K does not apply to a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands.
The applicants applied for Protection (Class XA) visas on 6 September 2013. However, by operation of s 45AA of the Act and reg 2.08F of the Migration Regulations 1994 (Cth), from 16 December 2014 the applications are taken to be, and to have always been, valid applications for Temporary Protection (Class XD) visas and are taken not to be, and never to have been, valid applications for Protection (Class XA) visas (the first visa application). A delegate refused to grant the visas on 18 September 2020. The then Minister purported to lift the statutory bar in s 91K and the s 48A bar against the making of a further Protection visa applications in Australia. The s 48A bar was purportedly lifted pursuant to a Ministerial Determination under s 48B dated 8 November 2019, which specified that the s 48A bar lift applied to a non-citizen if, and only if, among other things, that non-citizen had previously been refused, or purportedly refused, the grant of a protection visa pursuant to s 65 of the Act, other than a decision relying on subsections 5H(2), 36(1B), or (1C) or paragraphs 36(2C)(a) or (b) of the Act, where the application for the visa was not a valid application due to the operation of s 91K of the Act. Following this, the applicants purported to make a second application for SHEVs on 24 March 2021 (the second visa application). However, the applicants’ first visa application was not invalid due to the operation of s 91K (see CBW20) (case number 2015166). This means that the s 48A bar was not lifted for the applicants because they were not within the class of persons specified in the then Minister’s s 48B determination.
The second visa application was refused by a delegate on 20 December 2022. An application for review of that decision was made on 2 January 2023. However, the second visa application is, and always was, barred under s 48A. Accordingly, the second visa application is invalid. The Tribunal has no option other than to set aside the delegate’s refusal of the second visa application and substitute it with a decision that the second visa application is invalid.
DECISION
100. In respect of matter 1836311, the Tribunal sets aside the decisions to refuse the applicants Safe Haven Enterprise visas made on 19 June 2017 and substitutes it with a decision that the visa applications were not valid.
101. In respect of matter 2300046, the Tribunal sets aside the decisions to refuse the applicants Safe Haven Enterprise visas made on 20 December 2022 and substitutes it with a decision that the visa applications were not valid.
102. In respect of matter 2015166, the Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i) the second named applicant meets s 36(2)(a) of the Migration Act; and
(ii) the first and fourth applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.
103. The Tribunal affirms the decision not to grant the third named applicant a protection visa.
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
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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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