2310793 (Refugee)

2310793 (Refugee) [2024] AATA 4449 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2310793
COUNTRY OF REFERENCE:                   Albania
MEMBER:Michael Brereton
DATE: 9 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 9 October 2024 at 11:46am
CATCHWORDS
REFUGEE – Protection Visa – Albania – fear of harm due to brother’s relationship with married woman – kidnapped and threatened – limited evidence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 July 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Albania, applied for the visa on 13 February 2018. The applicant claimed to fear harm from the family of a married woman who had been in a relationship with his brother. The delegate refused to grant the visa on the basis that the lack of specific details, corroborating evidence and implausibility of events were indicative that the applicant’s claims are not genuine. The delegate rejected the claims in their entirety.
The applicant appeared before the Tribunal on 25 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted in the English language.
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, to the extent that they are relevant to the decision under consideration. The Department of Foreign Affairs and Trade has not published a recent country information report for Albania.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the applicant’s fear of harm from the family of a married woman who had been involved with the applicant’s brother. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Application to the Department
In his application for the visa the applicant claimed:
I left Albania because I was threatened with death by the husband of the girl that my brother had fallen in love with. My brother [E] was able to come to Australia by boat few years ago whereas I lived in Albania. during these years that my brother has been living in Australia and sought asylum, I was being threatened by him and his family. they wanted to kill my brother but because he was not in Albania and hasn’t returned for few years now, they took their anger towards me. Few months before coming here, her husband [J] with some intelligence officers kidnapped me and put me in the van, blind folded me, and sent me into a warehouse on the outskirts of the city, where they start hitting me and abusing me for few hours. Then they told me that we will drop you off close to your house under one condition that you or your brother should never return to Albania or else we will kill both of you. I was thrown out of the van in the middle of the road at night close to my house. I was scared and called my parents, they tried to help me find a way to leave Albania asap so that I can be safe.
The applicant was not invited to an interview with the Department or asked to provide further information.
Application to the Tribunal
On 21 July 2023, the applicant applied to the Tribunal for review of the delegate’s decision. The application to the Tribunal did not contain any additional evidence, information, or claims.
Hearing
The applicant was invited to attend a hearing listed on 25 September 2024. The applicant responded to the hearing invitation stating that he will attend the hearing and that he does not need an interpreter.
The applicant attended the hearing as scheduled. Prior to the commencement of the hearing, the applicant asked if he could have an interpreter in the Albanian language. He said that he understood English but may need help with legal concepts. The Tribunal attempted to locate an interpreter but was unable to obtain the services of an accredited interpreter. An unaccredited interpreter was located but was only available via telephone link.
The Tribunal spoke with the applicant about his language concerns. The applicant said that he understood English and was happy to proceed in English but may have some problems with legal definitions and words. The Tribunal asked if the applicant would like to begin in English and if there were words or areas he did not understand, the Tribunal would call the interpreter. The Tribunal said that it would check with the applicant throughout the hearing to make sure he was comfortable that he understood what was happening, and that he was satisfied that the Tribunal understood what he was saying. The applicant consented to proceeding in English in this way.
The Tribunal explained the purpose of the hearing, the protection visa criteria, the types of harm that are relevant to the visa, the questions that the Tribunal may ask, and the way that the hearing will proceed. At the end of this process the Tribunal asked the applicant if he understood everything. The applicant said that he did and that he had no problems with what the Tribunal had explained. The Tribunal decided to continue in the English language.
At the end of the hearing, the Tribunal asked if the applicant had understood everything that had been discussed today. He said yes. The Tribunal asked if he had said everything that he had wanted to say. It asked if he believed that the Tribunal understood his evidence. The applicant said that he was satisfied with the understanding and had nothing more that he wanted to say.
The applicant’s oral evidence and comments are considered below.
Identity
The applicant claims to be a citizen of Albania. He entered Australia using a [Country 1] passport in a different name but told the Department that this was a false passport. He has provided the Department with copies of Albanian identity documents including an Albanian passport and provided a copy of his Albanian passport to the Tribunal at the hearing. There is no information before the Tribunal indicating that the [Country 1] passport is legitimate, or casting doubt on the applicant’s claimed identity and nationality. There is no information before the Tribunal indicating that the applicant has a right to enter or reside in [Country 1] or in any other country.
The Tribunal finds that the applicant has been a witness of truth in relation to his identity. The Tribunal finds that the applicant is an Albanian citizen, and that Albania is the receiving country and country of reference for the purposes of this application.
Personal History
The applicant told the Tribunal that he was born in the town of [Town 1] in northern Albania. He lived with his parents and one brother (E) until the age of [age]. The applicant left [Town 1] and moved to Tirana, the capital city, where he lived in a student dormitory and completed his high school and tertiary education at the Bachelor and Master levels. He said that he obtained work as a [occupation] in Tirana and rented a flat there. He said that he visited his parents when he could, but he was not close to E.
Revenge Killing Threat
The applicant said that he did not talk to E about what he was doing and had no idea that E was involved with a married woman in Albania. He said that in 2013, he found out that E was in some trouble and was going to leave Albania for safety. The applicant found out that E had been involved with a married woman, but he does not know any other details. He does not know her name, how long the involvement lasted, how serious it was, or how her husband found out.
The Tribunal said that E had come to Australia and asked the applicant if he has contact with E here. The applicant said that he spoke to E briefly in 2017 after he (the applicant) had arrived, but they had a falling out and have not spoken or seen each other for six years. He has not spoken with E about the relationship with the married woman or any details around that relationship. The Tribunal asked if the applicant is in contact with his parent and he said that he speaks to them every week. The Tribunal asked if he has ever asked what E is doing and he said that he does not speak about E with his parents. He thinks E is still in Australia, but he does not know where E lives, what his visa status is, what he is doing, or any other details. He said that they were not close and that they had a falling out about what had happened in Albania.
The Tribunal asked the applicant to explain what happened in Albania. He said that in 2013, the applicant was living in Tirana and E was living in [Town 1] and that is where the relationship had happened. The applicant found out that E had been with a married woman and was escaping to Australia. The applicant did not have any contact with the woman or the woman’s family. Sometime later, while he was still living in Tirana, he received some threats on his mobile telephone. The callers wanted to find E and knew that the applicant is his brother. He said that no one ever came to his home in Tirana or spoke to him in person there.
In 2017, the applicant returned to [Town 1] to visit his parents. One day he was walking near his parents’ house when some people came up behind him. He was grabbed, blindfolded, and forced into a van. He was driven somewhere that he thinks may have been a warehouse and was punched and hit during the journey. He was tied up in the warehouse and the people asked him about E. He said that they did not identify themselves, but he knows they were the woman’s family because there is no other reason that anyone would want to know about E.
The applicant said that he was held for maybe half an hour or an hour, but he is not sure of the time. He was punched and he felt a gun being held against his head and neck. The applicant told the people that he did not know anything about E and eventually they said they would release him, but that if they saw him or E around Albania in the future, they would kill them. When the applicant was released, he went home and told his parents what had happened. His parents were very scared for him and told him that he had to leave Albania.
The Tribunal asked him to explain why he used a false passport and how he obtained it. He said that it takes a long time to get a visitor visa for Australia if you are an Albanian citizen. He said that you have to answer lots of questions and give lots of information before you can get a visa; however, if you have a [Country 1] passport, you do not need to go through the same process, and it is much quicker. He said that his parents arranged the [Country 1] passport so that he could leave as soon as possible. He said that he only used the [Country 1] passport to travel to Australia and he made the protection visa application in his real name.
The Tribunal asked if his parents have been harassed, visited, or contacted by anyone in relation to E’s relationship. He said he does not know. He said that his parents remain in [Town 1].
The Tribunal asked if there were any other reasons that people may have been looking for E or threatening the applicant. The applicant said no. The Tribunal asked if the applicant or E had ever been involved in criminal activities, gangs, or any other illegal activities in Albania and he said no. The Tribunal asked if the applicant had ever been involved in any sort of business dispute in Albania and he said no. He said that the only reason anyone will be interested in him if he returns is because of E’s relationship with the married woman.
The Tribunal put to the applicant that in his application he referred to the husband as being part of the Albanian intelligence services. The Tribunal asked him to explain what he meant. He said that he knows the husband is involved in construction and that anyone in Albania who has money and power has links to the authorities, the government, and the intelligence services.
The Tribunal put to the applicant that if there had been such an incident for these reasons, it does not understand why the persons will want to track the applicant down and harm him anywhere in Albania. It said that the brother was the target, and it may find there was not a real chance or real risk that the applicant will face harm now. The applicant said he was afraid because of what had happened. He said it will happen again or be worse and won’t have changed because they will keep the anger for a long time. He said that Albania is very small, and they can find him anywhere, especially because they have links with intelligence and government. He said that it was also a blood thing – if they cannot get revenge on the person they will come to the relative.
The Tribunal put to the applicant that it was concerned about whether the chance or risk of harm was a real chance or real risk, and that if it was not satisfied of this, the visa criteria would not be satisfied. The Tribunal asked the applicant if he wished to say anything further about why there might be a real chance or real risk. The applicant said that last time there was trauma and physical abuse, and it will be the same or worse this time. He said that if it had just been threats last time it may have been different, but they did the actions too.
At the end of the hearing the Tribunal asked the applicant if there were any other reasons that he feared harm in Albania. He said that there were no other reasons.
FINDINGS
The applicant presented as a well-educated, well-spoken man who responded to questions. Although he did not know a lot of detail about what happened with his brother, the Tribunal has assessed that this is a genuine response and not an attempt to avoid questions or to mislead the Tribunal. The Tribunal has proceeded on the basis that the applicant has been a witness of truth.
The applicant raised no concerns with his understanding of the hearing. The Tribunal has considered his responses and statements and is satisfied that the applicant displayed an understanding of what was happening, and the questions asked. The Tribunal is satisfied that the applicant was able to present his case and respond to the Tribunal’s questions and concerns.
The Tribunal accepts the applicant’s claimed personal history in relation to the following:
a.His date and place of birth, his family composition, his time living in Tirana, and his education and work details.
b.His evidence that he was not close to E and was not aware of E’s relationship with the married woman at the time it was occurring.
c.His belief that E left Albania because of the relationship.
The Tribunal is unable to determine any details around E’s relationship with the married woman, but there is nothing in the material before the Tribunal that contradicts or casts doubt on the existence of a relationship. For the purposes of this review, the Tribunal accepts that E was involved in a relationship in Albania and that it was at least part of the reason that E left.
The Tribunal accepts that once E left, the applicant was the only remaining male sibling in Albania. It is not implausible that persons with an interest in E may have turned to the applicant in an attempt to locate E or pass messages. The Tribunal accepts that at some time after E’s departure, the applicant received messages on his mobile telephone and that he felt that these were threatening. The Tribunal gives weight to the fact that the applicant was living in Tirana at this time and does not claim that anyone ever came to his address there, nor is there any other evidence before the Tribunal suggesting that the applicant was approached, watched, or contacted in Tirana, other than on his mobile telephone. The Tribunal finds that while the applicant received messages, these were telephone messages only and no one sought to approach or harm him in Tirana.
The Tribunal accepts that sometime after E’s departure, the applicant returned to [Town 1] to visit his parents. It is plausible that persons with an interest in E may have heard, or noticed, that the applicant was at his parents’ home (where E had lived before departure) and taken the opportunity to find out what they could about E. The Tribunal accepts the applicant’s claim that he was approached from behind on the street, blindfolded, and taken to a location for questioning. The applicant’s recollection of details of the incident is limited because, he says, of the time that has passed. Nevertheless, he recalls being asked questions about E, being physically assaulted, and feeling what he believes was a gun pressed to his neck and head. He does not claim to have seen the gun, but he said it felt like one. The Tribunal accepts that he believed there was a gun.

The applicant told the Tribunal that he does not recall how long he was held for. He said it may have been half an hour or it may have been longer. He said that after they had asked him about E, they told him that they would let him go but that he and E had to stay away from Albania, or they will kill them.
The Tribunal finds that the persons who questioned the applicant had an adverse interest in E and that this was the reason they approached the applicant. The Tribunal finds that this was an opportunistic incident in the sense that the applicant happened to be back at his parents’ house in [Town 1] at the time. The Tribunal finds that the applicant was questioned, assaulted, and released (albeit with a threat), which indicates that the persons did not have any intention or desire to kill, or to do any further harm to the applicant at that time. Nevertheless, the Tribunal accepts that the applicant was threatened and believed that he had to escape Albania. The Tribunal finds that this is the reason that he left Albania.
The Tribunal has considered the applicant’s evidence that the kidnappers have links to the Albanian intelligence services. His belief is based on the fact that the woman’s husband has a successful business, and he believes that anyone who has a successful business in Albania must have links to the government, authorities, or intelligence services. The applicant has no other evidence for his belief. There is no other evidence or information before the Tribunal indicating that the kidnappers have any links to the government, the authorities, or the intelligence services. The Tribunal does not accept that the kidnappers are linked to the government, authorities, or the intelligence services.
The Tribunal has considered whether the applicant faces a real chance or real risk of harm arising from this incident, now or in the reasonably foreseeable future, should he return to Albania. The Tribunal gives weight to the following:
a.The kidnapping was an opportunistic event, and the applicant does not appear to have been approached for any reason other than that he happened to be at his parents’ house at that time.
b.The kidnappers were interested in E and did not display any intention to kill the applicant at the time that he was in their custody.
c.The incident occurred sometime after E’s departure from Albania.
d.The applicant’s parents have remained in the family home in [Town 1] and have not, to the applicant’s knowledge, been approached by anyone looking for or asking about the applicant or E.
The Tribunal also gives weight to the time that has passed since the incident (more than five years) and the fact that the applicant had, and has, no contact with the woman himself.
Having regard to the above, the Tribunal is not satisfied on the information and evidence before it that there is any more than a remote, and therefore not a real chance that the applicant will be of adverse interest to any person or persons in Albania now, because of his brother’s history there, or because he (the applicant) has returned. The Tribunal finds that there is not a real chance that the applicant will face any harm from any person or persons because of his relationship with E, or because the applicant has returned to Albania, now, or in the reasonably foreseeable future, should he return to Albania.
The applicant does not claim, and the evidence before the Tribunal does not indicate, any other reason or reasons that the applicant may face harm in Albania now, or in the reasonably foreseeable future. The Tribunal finds that the applicant does not face a real chance of harm for any reason or reasons, now or in the reasonably foreseeable future, should he return to Albania. The Tribunal finds that the applicant does not have a well-founded fear of persecution should he return to Albania.
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).
The Tribunal has found that the applicant does not face a real chance of harm for any reason or reasons should he return to Albania. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB,[1] 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.[2] Having regard to this, and to the findings and reasons set out above, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Albania, there is a real risk that the applicant will suffer significant harm.
[1] (2013) 210 FCR 505
[2] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
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.
Michael Brereton
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 4449

9 October 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Appeal