2303030 (Refugee)

2303030 (Refugee) [2023] AATA 4534 (31 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2303030

COUNTRY OF REFERENCE: East Timor
MEMBER:Alison Murphy
DATE:31 October 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 31 October 2023 at 11:41am
CATCHWORDS
REFUFEE – protection visa – Timor-Leste – particular social group – lesbian – fear of detention – physical assault – state protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 March 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Timor-Leste, applied for the visa on 9 May 2022. The delegate refused to grant the visa on the basis that that they were not satisfied the applicant is owed protection by Australia.
The applicant appeared before the Tribunal on 9 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from a witness, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
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 is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
It is not in dispute that the applicant is a national of Timor-Leste as evidenced by her passport and she has been assessed on that basis by the Department. The Tribunal finds she is a citizen of Timor-Leste and that country is the country of nationality and the receiving country.
The applicant’s personal background
The applicant is [an age]-year-old female from [City 1] in Timor-Leste. At hearing she gave evidence that her mother had died in [year] and her father had remarried and lived separately in [City 1] with his wife. She gave evidence that she and her [siblings] lived with their grandmother and that she remained in phone contact with her father every few months because he has health issues.
After finishing secondary school, she worked on a plantation doing farming work. She is not married and does not have children.
She came to Australia [in] December 2019 as the holder of a [temporary] visa in [a group]. At hearing she stated that she came to Australia to work to sustain her family.
The Tribunal accepts each of the above matters to be true.
The applicant’s claims for protection before the Department
The applicant’s protection claims are set out in her protection visa application and an accompanying document which expands on those claims. In essence, she claims that she seeks Australia’s protection because she is a lesbian who was beaten by her family in Timor-Leste; that if she returns to that country she will be beaten and persecuted and that she will not be protected by the authorities because homosexuality is a shameful act in her country.
In the accompanying written statement dated 5 January 2022, she states (in summary) that she first realised she was LGBT on [a specific day in] January 2021 after meeting her partner at a club and starting a relationship; that she had sex dreams and thoughts and feelings of intense sexual attraction towards people of the same gender and that she is a lesbian relationship with [Ms A], also from Timor-Leste and that they live together at an address in Tasmania. She states that same sex marriage is not legal in Timor-Leste, that the LGBT community will never be accepted and that her own family will punish her if they find out she is gay. She claims that if returned she will be harmed; mistreated or degraded by the community in Timor-Leste and discriminated against by the authorities who blame them for their own victimisation and refuse to take their grievances or reports of abuse seriously.
At hearing the applicant gave evidence that when she first arrived in Australia her intention was to return to Timor-Leste after working for a period but that when she looked at the situation she realised she couldn’t return. When asked why she couldn’t return, she stated that she is a lesbian who likes women and that some of her family didn’t like it so she saw the opportunity to come to Australia. When asked about her experience as a lesbian in Timor-Leste, she said she liked to go out with female friends and she couldn’t go out with male friends.
When asked if she had relationships with women in Timor-Leste, she said she was in a relationship with a girl called [Ms B] for about a year in 2018 and 2019 but that her family didn’t like it so it ended and [Ms B] is with someone else now. When asked how her family knew about her relationship with [Ms B], she said that [Ms B] came to the house to help out when her mother died. When I noted her earlier evidence that her mother had died in [year], she said [Ms B] came to help out when her step-mother died. When I queried that, noting she had said her father was living separately in [City 1] with his second wife, the applicant stated that she was living with her aunt and uncle when her uncle’s wife died and that she referred to her aunt as her godmother. When asked how her family showed that they didn’t like her relationship with [Ms B], the applicant said her uncle told her brother to beat her in 2018, after which she had no further contact with him until her travel to Australia.
The applicant gave evidence that she commenced a relationship with her current partner [Ms A] on [a day in] January 2021, after meeting her at a bar in Tasmania. She stated that she had met [Ms A] before because they worked at the same company, but they didn’t know each other well until their bosses asked them to go and have dinner together on [the day in] January 2021. When they met at the bar, they liked each other and they have been living together in a relationship since that night. She said that she and [Ms A] had met each other’s friends, but the only person who knew about their relationship was their boss [Boss A]. When asked if they shared a bank account, she said that she had lost her ATM card so the two of them shared a card but that her bank account was in her name only. She said they did not have a lease agreement, but rented a room that they shared.
[Ms A] did not initially attend the hearing, but after some discussion as to whether she would give evidence the Tribunal adjourned the hearing for a period to allow her to travel to the Tribunal premises and give evidence. [Ms A] gave evidence that she and the applicant had arrived in Australia together in a group of friends [in] December 2019. They were friends while they were working together and started a loving relationship in January 2021 after going on a date together at a club in [City 2], Tasmania. She said it was her first relationship with a woman and she didn’t know if the applicant had had other relationships with women before her. She said that no one knew about their relationship, including their employer.
At hearing the Tribunal raised with the applicant the issue of her credibility, advising her that she and [Ms A] had made detailed written claims that were identical to those of two other applicants with protection visa reviews before the Tribunal. The Tribunal noted that those other applicants also claimed to have realised they were gay after meeting their partner at a club in Australia on [the same day in] January 2021 and starting a relationship and that those other applicants also claimed to live at the same address and work for the same employer as the applicant and [Ms A]. The Tribunal noted that the identical nature of those claims by other claimants caused the Tribunal to doubt that the matters described in those claims reflected the applicant’s own experiences. When invited to comment, the applicant said that someone else wrote their visa applications for them but that she and [Ms A] are in a genuine relationship.
Following the hearing, the Tribunal wrote to the applicant pursuant to s 424A of the Act, inviting her comments or response to matters that it considered would be the reason, or part of the reason, for affirming the decision under review. Those matters included the fact that the written claims made by herself and [Ms A] were identical to two other review applications before the Tribunal and that those two review applicants had attended a Tribunal hearing to give evidence about their relationship which they claimed commenced on the same date and in the same circumstances as that of the applicant and [Ms A]. The Tribunal’s letter also raised matters concerning apparent inconsistencies in the evidence of the applicant and [Ms A] as well as concerns that [Ms A’s] evidence may not be impartial given she is seeking to remain in Australia on the basis of the same claims as the applicant.
The applicant responded to the Tribunal’s letter on 23 October 2023. In that response she reiterated her evidence to the Tribunal, including that she was in a lesbian relationship with [Ms B] in Timor-Leste, but that her family did not allow it and her brother beat her. She maintained that she was working and living with [Ms A] in Tasmania when they fell in love in a club in [City 2] in January 2021 and that they continued to have a loving relationship. She did not make reference to the issue of the identical claims before the Tribunal.
The Tribunal has carefully considered the applicant’s written claims, oral evidence and response to the s 424A letter as well as the evidence of her witness, [Ms A]. However for the following reasons, the Tribunal does not accept the applicant’s claims to be true. In particular the Tribunal does not accept she is a lesbian as claimed, nor that she is in a same-sex relationship with [Ms A].
Firstly, the written claims made by the applicant and [Ms A] in their protection visa applications are identical to those before the Tribunal in two other review applications, differing only in so far as they contain different personal identifying details for the other applicants and their claimed partners.
As set out in the Tribunal’s s 424A letter, the two applicants in the other review applications make identical written claims in their visa applications to those of the applicant and [Ms A], including that:
- They are lesbian since arriving in Australia;
- They have seen their peers (gay and lesbian) being punished and pushed away from their homes because of who they are;
- They were very happy when their visa to Australia was approved because they knew Australia became the 26^th country to legalise same sex marriage in December 2017 and they would be accepted here and able to live a normal life;
- They have been humiliated at places they go with their friends by people pointing fingers at them as if the are the only sinner in the world and this treatment has caused them to suffer from depression and post-traumatic stress disorder;
- That they had sex dreams, sexual thoughts and feelings of intense attraction toward people of the same gender although these things do not necessarily ‘prove’ your orientation;
- They realised they were LGBT on [the same day in] January 2021 after meeting their partner at a club in Australia and starting a relationship;
- They are in a relationship with another woman from Timor Leste and living with her at [an address in Town 1] Tasmania, being the same address that the applicant and [Ms A] claimed to be living at in their protection visa applications;
- They work for the same employer as the applicant and [Ms A], being [Employer 1], at [another address in Town 1] in Tasmania;
- That despite the violence, persecution and discrimination faced by the LGBTQ community, Timor Leste is a relatively progressive nation when compared to other parts of Asia. In 2017, prime Minister Rui Maria De Araujo spoke out openly in support of LGBTQ rights, becoming the first Asian head of state to do so. Interestingly, many queer individuals have also found support within the Catholic church. While the Catholic church hasn’t taken an official stance in support on LGBTQ rights, many congregations have got involved to support the community and a nun even volunteered to lead the prayer at the 2017 pride parade.
- That the authorities are the ones discriminating against them and refuse to take grievances or reports of abuse seriously. They face constant humiliation and degradation and are blamed for their own victimisation.
- The moral of the story is they have only one home and relocating to another part of the country will involve lots of expenses and they will face the same treatment.
The Tribunal has considered the applicant’s response at hearing to the effect that somebody else prepared their visa applications and this is why they are the same as those of other applicants. The Tribunal considers it is clearly the case that someone else prepared the written claims of the applicant and [Ms A]. However the fact that the specific claims made by the applicant about the date and circumstances of the commencement of her relationship with [Ms A] have been made in identical terms by two other applicants for a protection visa causes the Tribunal to doubt that the events set out in the protection visa application reflect the applicant’s own experiences.
Secondly, the applicant’s evidence at hearing was vague and inconsistent in a multitude of respects.
·The applicant claimed to have been in a relationship with a woman called [Ms B] in Timor-Leste in 2018 and 2019, claiming that her family had been angry and her brother had beaten her as a result. When asked how her family found out about her relationship with [Ms B], she said that [Ms B] came to help out at the house when her mother died. When I noted that she had given evidence that her mother died nearly 25 years earlier in [year], the applicant said it was her step-mother who had died. When I queried this, noting that she had given evidence her father was living with his second wife in [City 1], she said that it was the wife of one of her uncles who had died and that she referred to that person as her godmother;
·The applicant gave confusing and inconsistent evidence about who, if anyone, was aware of her relationship with [Ms A]. She told the Tribunal that her male school friend (whom she initially referred to as her cousin) was driving [Ms A] up to the Tribunal hearing to give evidence and initially gave evidence that he knew about their relationship. When asked how he knew about the relationship, the applicant stated he didn’t know about it in detail but that she had asked him to drive [Ms A] up to the hearing because he knew the applicant and [Ms A] were partners. When asked how he knew they were partners, she said he might know based on their reactions. When I sought to clarify whether this person did in fact know about the relationship, she stated that she was not sure but she felt as if he knew. When asked if she had told him about the relationship, she said that she had told him but not in detail. When the Tribunal indicated that it was very confused about her evidence, she said that she had asked him to bring [Ms A] to the hearing because he knew [Ms A] was her partner. When asked if it would be useful for the Tribunal to hear evidence from him if he knew about their relationship, the applicant said that he could not speak to the Tribunal because he had to go to work;
·When asked if any of their friends in Queensland knew about their relationship, the applicant said they could do because the two of them went everywhere together. When asked if there was anyone who definitely knew about their relationship, she said there was not and they do not present themselves to their friends as being partners. When asked if her work colleagues knew they were partners, she said the good ones knew. When asked who specifically knew that she and [Ms A] were partners, she said their boss [Boss A variant] knew about their relationship but that there was no one else. When asked if there was anyone who could give evidence about her relationship with [Ms A], she said there was not because everyone was working. She said that she had met [Ms A’s] friends, but that [Ms A] had not told her friends or family about their relationship.

Thirdly, there are inconsistencies in the evidence given by the applicant and [Ms A]. The applicant told the Tribunal that they met in a bar in Tasmania, [City 2] in January 2021 after their bosses asked them to have dinner together. She said they had met before at work, but they didn’t know each other well. However [Ms A] gave evidence that she arrived in Australia together with the applicant on the same plane [in] December 2019 in a group of male and female friends and that they were friends for two years before commencing their relationship in January 2021. The review applicant also gave evidence that their boss, [Boss A], knew about her relationship with [Ms A], while [Ms A] gave evidence that their boss did not know about their relationship. When I raised this apparent inconsistency with the applicant at hearing, she said that [Ms A] was not that close to their boss and that the applicant represented both of them with regard to their boss.
As well at the hearing the applicant sought to prompt [Ms A’s] answers to the Tribunal’s questions, requiring the Tribunal to intervene on two occasions to direct her not to communicate with the witness during her evidence and warn her that her continued attempts to do so reflected poorly on the credibility of their evidence.
Finally, [Ms A] gave evidence that she has also made an application for a protection visa on the basis of her sexuality and her relationship with the applicant. As set out in the s 424A letter, the Tribunal has obtained a copy of [Ms A’s] protection visa application which is in identical terms to that of the applicant and names the applicant as [Ms A’s] partner in Australia. In these circumstances the Tribunal considers that [Ms A’s] evidence is not impartial as she is seeking to remain in Australia on the basis of the same claims as the applicant. Such circumstances will not always give rise to concerns about the credibility of the witness evidence but in this case, taken together with the other very grave overall concerns held by the Tribunal about the credibility of the applicant’s evidence, they cause the Tribunal to doubt the credibility and truthfulness of [Ms A's] evidence.
For all of the above reasons, the Tribunal does not accept that the applicant is in a relationship with [Ms A] as claimed, nor that she previously had a relationship with a woman named [Ms B] in Timor-Leste. The Tribunal does not accept that the applicant is lesbian, nor that she was beaten or harmed by members of her family or community for reasons of her sexuality while in Timor-Leste.
As the Tribunal does not accept the applicant is lesbian as claimed, it follows that the Tribunal does not accept there to be a real chance the applicant will face harm from her family, neighbours, or the wider community for reasons of her sexuality if she returns to Timor-Leste, now or in the reasonably foreseeable future.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[1] For the same reasons the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm by any person or group for reasons of his sexuality as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste.
[1] MIAC v SZQRB [2013] FCAFC 33.
As the applicant does not claim to fear harm for any other reason, she does not meet the criteria for a protection visa.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Murphy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4534

31 October 2023

Key Legal Topics

Areas of Law

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