2306522 (Refugee)

2306522 (Refugee) [2024] AATA 4385 (11 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Serguei Tchernine (MARN: 0106729)
CASE NUMBER:  2306522
COUNTRY OF REFERENCE:                   Georgia
MEMBER:Sophie Manera
DATE:11 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 11 September 2024 at 12:00pm

CATCHWORDS
REFUGEE – Protection Visa – Georgia – association with her husband – political opinion – support of the UNM – were targeted by members of the GDP – lack of detail in, and vague nature of, the oral evidence – Tribunal does not accept the applicant is or has ever been involved with the UNM – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant is a [age]-year-old woman and a Georgian national.
On [date] April 2017 the applicant arrived in Australia on a valid visitor visa.
On 7 July 2017 the applicant applied for a protection visa.
The applicant provided the following documents in support of her protection visa application:
·newspaper article in Georgian with uncertified English translation relating to her husband;
·letter from [colleagues] in Georgian with certified English translation;
·letter from son’s friends in Georgian with certified English translation;
·letter from the applicant’s sister [Ms A] in Georgian with certified English translation;
·bundle of 2 letters from neighbours in Georgian with certified translation;
·letter from the United National Movement (UNM) in Georgian with certified translation;
·documents regarding the applicant’s identity and change of name, educational qualifications and marital status.
In a statutory declaration provided to the Department dated 18 March 2021, the applicant claimed as follows:
·the applicant is a Georgian citizen;
·the applicant’s ex-husband was a member of the UNM party in Georgia. The applicant also supported the UNM party, but was not a member;
·prior to the October 2012 elections, the applicant’s husband was active in the UNM. He worked as [specified roles] of his area. He was paid for this work;
·the applicant’s husband took the applicant, colleagues and friends to promote the UNM in the lead up to the 2012 elections;
·the applicant’s husband owned a [business]. Before the elections in 2012, the applicant’s husband was assaulted and his [business] was vandalised; windows were broken. The assailants were trying to kill the applicant’s husband but he managed to run away. She claims he was assaulted by members of the Georgian Dream Party (GDP);
·the applicant’s husband was targeted by members of the GDP. They threatened to destroy his life if he did not stop supporting the UNM. Members of the GDP came to their house and they threatened to kill the applicant’s husband;
·the applicant and her family went into hiding in approximately December 2012. They hid from place to place in various [cities];
·the applicant’s husband managed to leave Georgia in November 2013;
·the applicant and her children were contacted and threatened by members of the GDP after her husband’s departure. They had to keep hiding;
·in approximately July 2014 the applicant was followed by 3 members of the GDP whilst in [City 1]. They asked about the applicant’s husband’s whereabouts. They were very aggressive towards the applicant;
·the applicant had received threatening phone calls from the GDP since before the 2012 elections and up until she departed Georgia in April 2017. They came more often around the time of the October 2016 elections. In these phone calls, the applicant was threatened that she and her family members would be killed if she did not stop her involvement with the UNM and assisting her husband’s friends;
·the applicant’s children also received similar threatening phone calls and they changed phone numbers multiple times;
·after the October 2016 election, the applicant’s son was attacked by GDP members and had his hand broken;
·the applicant left Georgia to be reunited with her (then) husband, arriving in Australia on [date] April 2017.
The applicant was not invited to attend an interview with an officer of the Department. Instead, on 15 March 2023, the applicant was invited under s 56 of the Migration Act 1958 (Cth) (the Act) to provide more information for her protection visa application.
The applicant provided a further statutory declaration to the Department dated 8 March 2023. In the statutory declaration, the applicant reiterated that she feared harm in Georgia because of her association with her husband, and because of her support of the UNM. She claimed that she and her husband were targeted by members of the GDP.
On 12 April 2023 the applicant provided the following additional documents to the Department:
·submission by the applicant’s representative dated 12 April 2023;
·letter of support from the UNM with certified English translation;
·further letter from the applicant’s sister [Ms A] confirming the applicant sends money via her to the UNM from Australia, with bundle of remittance advices in Georgian with certified English translation;
·second letter from the UNM in Georgian with certified English translation;
·bundle of the applicant’s bank statements;
·letter from [Ms B] confirming the applicant sends money via her to the UNM from Australia, with bundle of remittance advices in Georgian with certified English translation.
On 27 April 2023 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Act. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non‑citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).
This is an application to the Administrative Appeals Tribunal (the Tribunal) for review of that decision. The applicant made an application for review on 11 May 2023. The Tribunal finds that the applicant has made a valid application for review under s 412 of the Act. The applicant provided a copy of the delegate’s decision to the Tribunal.
The applicant appeared before the Tribunal on 30 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Georgian and English languages.
The applicant was represented in relation to the review; however, her representative did not attend the hearing.
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). 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.
Nationality
In her application for a protection visa, the applicant claims to be a citizen of Georgia born in [City 1].
The applicant provided a certified copy of her passport biodata page in support of her protection visa application. This document states she is a citizen of Georgia and the issuing authority is the Ministry of Justice.
There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Georgia, and as such her protection claims will be assessed against Georgia as the country of reference and ‘receiving country’ respectively.
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 as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Analysis, findings and reasons
In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also aware that if it makes an adverse finding in relation to a material claim made by an applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by the applicant. Furthermore, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant is not made out.[2]
[1] MIMA v Rajalingam (1999) 93 FCR 220.
[2] Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348.
The Tribunal has significant concerns with the credibility of the applicant’s evidence. In reaching this conclusion, the Tribunal has had regard to the lack of detail in, and vague nature of, the oral evidence given by the applicant during the hearing, and the applicant’s failure to mention key elements of her claims for protection during the hearing.
The applicant’s expression of her political opinion in Georgia
During the hearing, the Tribunal asked the applicant to discuss her involvement in politics from its commencement until the present. The applicant stated that she was not a member of the UNM. She said she was a [Role 1] who went from door to door checking the list of voters. The Tribunal pressed the applicant to provide further detail of her involvement in politics. The applicant said that before she left Georgia she was very actively involved. She attended protests. In Australia she provides financial support from time to time when she has money to spare. The Tribunal again asked the applicant to provide as much detail as possible about her active involvement in politics. The applicant repeated that her main role during the election was as a [Role 1], going door to door and checking data or checking how many members there were in the family. The Tribunal again pressed the applicant for further details, for example, what her motivation was for becoming involved in politics. The applicant responded that her motivation was that she had respect for the values of the UNM. The Tribunal asked the applicant whether there was anything else she could say about her involvement in politics at any time. The applicant said she attended protests and meetings before coming to Australia. She did not provide further details, such as where the meetings took place or with whom she attended the meetings and protests.
The Tribunal asked the applicant to provide details of any occasions where she had expressed her political opinion in public. The applicant said that she volunteered and she attended protests. When pressed, the applicant said she did not have anything further to add.
The Tribunal asked the applicant to discuss some of the recent activities of the UNM. The applicant said there was a meeting in Batumi recently where Tina Bokuchava and another politician were speaking. When pressed for more details, the applicant says that there had been protests in Georgia against a Russian foreign agent law. The Tribunal asked the applicant about the current activities and policies of the UNM. The applicant responded that the main policies of the UNM are European values, such as human rights and freedom of speech. When asked what policies the UNM was bringing to the upcoming October 2024 election, the applicant said that the main aim of the UNM will be to join the European Union.
The Tribunal found the applicant’s evidence in relation to her political activities and political opinions vague, lacking in detail and unpersuasive. The Tribunal noted, put to the applicant during the hearing, that her written statements provided to the Department in support of her application for protection were far more detailed than the oral evidence she had given during the hearing. For example, during the hearing she did not mention her ex-husband’s involvement in politics, despite her written claims that her husband was a member of the UNM. In her statutory declarations he appears to play a substantial role in the applicant’s claimed motivation for becoming involved in politics, considering he took the applicant to promote the UNM in the lead up to the 2012 elections, and the applicant claims to have decided to join the UNM about a year after her husband.
Furthermore, the Tribunal notes the applicant stated during the hearing that her children are unable to work in Georgia because of her political opinion. However, when pressed on how she expressed her political opinion, she could not provide any information besides attending protests and volunteering, and she provided scant detail about those activities. She did not explain how or why her activities had prevented her children from working.
Despite asking the applicant several times to provide as much detail as possible in relation to her political activities, the Tribunal notes the applicant did not state when she became involved in politics, who else was involved in her decision to get involved, how her political involvement developed over time, at which branch she attended political meetings, where she attended to doorknocking and what, specifically, her role as a [Role 1] involved. The Tribunal is concerned by this, considering the applicant provided detailed statutory declarations dated 18 March 2021 and 8 March 2023 which explained how and when she became involved in politics, with detailed reasons as to why she became involved and what her role as a [Role 1] involved both prior to and on election days.
Considering the level of detail contained in the applicant statutory declarations, the Tribunal finds it reasonable for the applicant to have provided a similar level of detail in her oral evidence. Instead, the Tribunal notes the applicant provided very little oral evidence of her involvement in politics.
She also demonstrated only a superficial knowledge of the policies and recent activities of the UNM, despite claiming to be a current and regular financial supporter. For example, she did not mention that the UNM has co-founded a new political platform called Unity for the Salvation of Georgia.[3] The Tribunal finds it reasonable for the applicant to have provided more information on the UNM’s current policies, considering her claimed continuing support for the UNM over the past 7 years and the upcoming October 2024 elections.
[3] ‘New political platform - Unity for the Salvation of Georgia founded’, InterPressNews (8 July 2024) <
The Tribunal also considers the applicant’s evidence in relation to past harm experienced in Georgia to be vague, undetailed and unpersuasive. When asked during the hearing about incidents of harm suffered, the applicant said that on one occasion a person pulled on her earing, it came out and the applicant suffered an injury to her ear. She did not provide any details as to who attacked her, when this happened and the circumstances surrounding the attack. She did not state that it was related to her political opinion claims. The Tribunal asked the applicant to provide further details of any harm or harassment that she had personally suffered. The applicant said that she had received threats on her old phone. However, she did not state who the threats had come from, the circumstance of receiving the threats, and the timing and frequency of the threats. The applicant then mentioned that her son had been warned that the police might try to put drugs in his car and frame him for drug possession. She did not explain how this was relevant to her claims for protection. The Tribunal has significant concerns with the applicant’s oral evidence regarding past harm suffered in Georgia. This is because the applicant’s statutory declarations provide substantial details of the threats the applicant and her family suffered. For example, in her statutory declarations she claimed that she received threats in Georgia because of her and her husband’s political activities. In her statutory declaration dated 18 March 2021, the applicant claimed that members of the GDP party came to her house on one occasion. As a result, the family decided to go into hiding. Considering the significant detail provided in the applicant’s written statements, the Tribunal considers it reasonable for the applicant to have provided a similar level of detail in her oral evidence. The Tribunal is concerned that she could not do so and finds this adversely impacts the credibility of her evidence.

During the hearing the Tribunal also asked the applicant why she feared returning to Georgia. The applicant responded that she does not want to remember things. When asked to expand on this, the applicant responded that she believes her life will be under threat. When pressed on why she believed her life would be under threat, the applicant responded that she was scared to return. When further pressed, the applicant again stated that she believed her life would be under threat. When again asked why, the applicant eventually said it was because of her opinions.
Considering the lack of detail provided earlier in the hearing, the Tribunal asked the applicant to explain her opinions further. The applicant asked whether she could instead write this down. The Tribunal provided the applicant with a period of one week to provide any further documents and information to it, however it also informed the applicant that considering she had provided 2 detailed written statements in support of her claims, the Tribunal would expect her to be able to talk about why she fears returning to Georgia, and this may impact the weight given to any further written statement. The applicant did not provide any further documents to the Tribunal within the period specified. To date, no additional documents or information have been received from the applicant.
Assessment of claims
When the significant disparities between the applicant’s written and oral evidence were raised with the applicant, she responded that she did not mention her ex-husband when giving oral evidence as they are no longer in a relationship. However, the Tribunal is not satisfied by this answer. The Tribunal asked the applicant to explain her involvement in politics, including the motivations for her involvement. The Tribunal finds it reasonable for the applicant to have mentioned her ex-husband, particularly considering she mentioned him in her 2 statutory declarations, which were both signed after she had divorced from her husband, and considering his central role in her written claims. Furthermore, the applicant did not comment on why she was unable to provide more detail on how she expressed her political opinion or her involvement in politics more generally. She did not comment on why she was unable to provide more detail on the threats received in Georgia. She did not comment on why she was unable to provide further detail during the hearing about her fears of returning to Georgia.
The Tribunal has also considered the applicant’s assertion that she has a poor memory and she was nervous during the hearing. No medical evidence has been provided regarding her memory. There is no persuasive evidence the applicant suffers from any condition that impacts her memory, and the applicant has not claimed to suffer from any such condition. The Tribunal understands it is natural for an applicant to be nervous when attending a Tribunal hearing, considering its significance, however the Tribunal is not satisfied that nerves entirely explain the applicant’s failure to provide basic details about her political involvement, such as when she first became involved and how her involvement developed over time. Considering the level of detail in the written statements provided, and considering the applicant’s most recent statutory declaration was signed by the applicant approximately only 18 months ago, the Tribunal’s concerns are not assuaged by the applicant’s claimed memory problems or nervousness.
Documents provided
The Tribunal has considered the documents provided by the applicant. In relation to the letters and statements from the UNM officials, friends, colleagues and family, the Tribunal has been unable to test the evidence of these witnesses as they were not called to give oral evidence during hearing. Considering the Tribunal’s overall credibility concerns with the applicant’s evidence, and considering the Tribunal has not been able to test the evidence of these witnesses, the Tribunal places no weight on the written statements and letters provided by persons in Georgia. In relation to the remittance advices and bank statements provided, the Tribunal notes the money is sent from the applicant’s personal bank account to the bank account of a friend or family member. The bank statements do not demonstrate that the money has, in fact, been paid to the UNM. They only demonstrate that the applicant has sent money to a friend and to her sister. The money could have been used for anything. Furthermore, the Tribunal has been unable to test the evidence of the applicant’s sister and friend as to how they arrange the payments to the UNM. As such, the Tribunal places no weight on the evidence of money transfers as evidence of the applicant’s political involvement or opinion. In relation to the newspaper article provided to the Department, the Tribunal informed the applicant it had concerns with this document as it did not appear to show the date of issue, nor the newspaper name. The Tribunal also informed the applicant that country information indicates that document brokers, who produce fake documents such as employment certificates or documents supporting asylum claims in exchange for money, are in high demand in Georgia.[4] The applicant responded that she was aware the newspaper was a real newspaper, however she did not make any particular comment on the authenticity of the news article provided. Considering the Tribunal’s concerns with the newspaper, and country information on the prevalence of bogus documents from Georgia, the Tribunal places no weight on the newspaper article provided to the Department.
Conclusion on the refugee criterion
[4] ‘Migration Drivers Report: Georgia as a Country of Origin’, European Union Agency for Asylum (EUAA), 17 August 2022 <
When considering the totality of the applicant’s evidence, the Tribunal finds her claims do not add up. The Tribunal has significant concerns considering the applicant provided very detailed written statements explaining why she feared persecution in Georgia, and yet she provided very limited oral evidence during the hearing. She could not satisfactorily explain the gaps in her oral evidence. While these concerns were put to the applicant for comment, the Tribunal is not assuaged by her responses.
The Tribunal finds the gaps in the applicant’s evidence are significant. Considering the vagueness and lack of detail in the oral evidence given by the applicant, the Tribunal does not find the applicant’s evidence, as a whole, to be credible. There is no persuasive evidence to support the applicant’s claims.
On the basis of these findings, the Tribunal does not accept the applicant is or has ever been involved with the UNM or any other political movement in Georgia. The Tribunal does not accept the applicant has ever attended political meetings or protests. It does not accept that she has ever come to the adverse attention of the GDP for any reason. It does not accept the applicant and her family moved from place to place to avoid harm. It does not accept the applicant has been threatened by the authorities or the GDP for any reason. It does not accept the applicant’s family members have been threatened or harmed by the authorities of the GDP for any reason. It does not accept the applicant would become involved in politics upon return to Georgia.
As such, the Tribunal does not accept the applicant faces a real chance of serious harm for reasons of her political opinion, if returned to Georgia now or in the reasonably foreseeable future. The applicant did not claim harm for any other reason in Georgia.
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).
Complementary protection
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). Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act. On the basis of the findings above, and for the same reasons as referred to above, the Tribunal is not satisfied that the applicant faces a real risk of significant harm for reasons of her political opinion. She did not claim to fear harm for any other reason.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of the same family unit
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Sophie Manera
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.
…

[2024] AATA 4385

11 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Appeal