2312344 (Refugee)

2312344 (Refugee) [2024] AATA 4460 (7 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2312344
COUNTRY OF REFERENCE:                   Albania
MEMBER:Andrew Verduci
DATE:7 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 07 October 2024 at 9:07am
CATCHWORDS
REFUGEE – protection visa – Albania – political opinion – member of political party observed member of another political party interfering at polling place – assaulted and later abducted and beaten and second applicant harassed at workplace – vague and inconsistent evidence about political beliefs and activities, and claimed assaults – arrived with group to do an activity, but never did it – vague, inconsistent and implausible evidence about activity – genuineness of supporting documentation – returns to home country after holidays to other countries – other travel not declared in protection visa application – members of family unit children – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

[The first-named applicant] is a [Age]-year-old male citizen of Albania. [The second-named applicant] is a [Age]-year-old female citizen of Albania. They are husband and wife. They arrived in Australia together in June 2016 holding a [Temporary Work]. The third and fourth named applicants are their two children who are aged [Ages] respectively. They are also Albanian citizens.
[The first and second applicants] applied for a protection visa in October 2016. Their two children were joined to their application at a later stage. In July 2023, a delegate of the Minister refused to refuse to grant all of the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
This is a review in relation that decision.
Protection visa application
[The first and second applicants] were granted [a] visa in order to [do an activity with a group of others]. They arrived in Australia in June 2016 and applied for a protection visa in October that same year. Their application was made with the assistance of a legal representative.
The following is a concise summary of the information and evidence in their protection visa application:
·[The first and second applicants] were both born in [Municipality] in Tirana, Albania. They both completed high school in Tirane. Their relationship started in [Year] and they were married in Tirane in [Year].
·[The first applicant]’s parents were alive and living in Albania, along with his [brothers]. [The second applicant]’s parents were alive and living in Albania, along with her [sisters].
·[The first and second applicants] left Albania to [do an activity with their group].
·[The first applicant] was assaulted on 21 June 2015 by a member of the Levizja Socialiste per Integrim (LSI) political party who he observed rigging votes at a polling station during elections. A police officer was present but did not intervene. He went to hospital following the assault. He tried reporting the assault to the police but they did not take any action.
·On 30 November 2015, three people entered his taxi and asked him to drive to a particular location. When they arrived, he was forced to exit the car at gun point and was taken to see the sane LSI party member who had previously assaulted him. He was tied to a chair and beaten with baseball bats all over his body. It was a warning and he was told the next time he would be killed. He did not report it to the police because he knew that they wouldn’t do anything.
·[The second applicant] owned a retail [store]. After [the first applicant] was assaulted on election day, LSI party members would come to her shop. They would issue fines to her and just hang around watching. She transferred the shop to her sister but the threats and fines continued.
The third and fourth named applicant were joined to their parents protection visa application. They do not make any claims in their own right and rely on their membership of the same family unit of [the first and second applicants].
The applicants were invited to an interview with the delegate, however the interview did not proceed because an interpreter was not available. The delegate sent the applicants multiple requests for additional information and evidence in writing in support of their application. The applicants’ gave written responses.
The first response included, among other things, a copy of a letter from [Hospital] in Albania stated that [the first applicant] was treated there on 21 June 2015. It also included a statutory declaration by [the first applicant] about his claims. The second response included, among other things, another statutory declaration by [the first applicant].
The delegate accept that the applicants were Albanian citizens. The delegate did not accept that [the first and second applicants] travelled to Australia with a genuine intention to [do an activity in a group]. They did not accept that [the first applicant] was an active member of the Democratic Party of Albania (PD); did not witness LSI party member [Mr A] interfering with Municipal elections; was not assaulted and hospitalised on 21 June 2015 and was not abducted, assaulted and threatened by three unknown men and [Mr A} on 30 November 2015. They did not accept that [the first and second applicants] were threatened, under surveillance and receiving fines from members of the LSI party. The delegate found that none of the applicants faced a real chance of serious harm or a real risk of significant harm for any reason.
Application for review
The applicants applied for review of the delegate’s decision with this Tribunal in August 2023.
They provided a submission which included an undated statement by [the first applicant], copies of a letter said to be from [Hospital] (in English and in a language other than English) and multiple letters purporting to be certificates from the Democratic Party of Albania in relation to [the first applicant]’s member of the PD part (in English and in a language other than English).
The applicants appeared before me in person on 4 October 2024 to give evidence and present arguments. We were assisted by an interpreter in the Albanian and English languages when necessary. They were advised in my introductory remarks that the evidence they give would not be made public in any way that might identify them, and that the interpreter also had a professional duty to maintain the confidentiality of the proceedings.
The interpreter appeared via a video link which dropped at different times during the hearing. The hearing was paused each time until the connection was re-established. At the point of re-establishing the video connection, I summarised the questions and/or evidence being discussed and clarified what had just been said. Although the interruption was regrettable, I have reflected on its effect during hearing and any possible impact on the review overall. Despite the interruptions, I am satisfied that the applicants have received a reasonable, genuine and meaningful opportunity to appear and to give their evidence and arguments in relation to the issues arising in relation to the decision under review.
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.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Identity, family and receiving country
In the absence of any evidence to the contrary, I am prepared to accept that the applicants identity is as they have claimed. There is no suggestion that their identification documents are not genuine, for example, and I am therefore prepared to accept that they are.
I am prepared to accept that [the first and second applicants] are married and that the third and fourth named applicants are their children. They are members of the same family unit.
I am also satisfied that they are citizens of Albania and that Albania is therefore their receiving country under the Act.
[Group] experience
[The first applicant] says that he started learning to [use an activity equipment] in approximately [Year] and was informally taught by a neighbour for about 1 and half years. However, he also says that he was [participating in venues] from [Year] onwards, a claim that I find implausible given he had only just started [using the equipment] at that time.
I asked [the first applicant] what type of [equipment] he used to [use], given that open-source information suggests there are many different types of [equipment] in the [equipment range].[1] The [equipment range] includes, for example, the [equipment sizes]. His only response is that he [uses] ‘the [equipment]’ and that there is only one type of [equipment] in Albania. It is implausible, and I do not accept, that a [activity participant] with [the first applicant]’s claimed experience, including being invited to [do an activity] in Australia as a part of the [group], would have no knowledge of any of the types of [equipment] in the [equipment range], let alone the particular type or types that he claims to have learnt and [used].
[1] [References].
[The second applicant] says that she [did an activity] as [an activity participant] in [venues] in Albania together with [the first applicant]. When asked for more detail, her responses that they were just ‘[venues]’ was very vague. When asked if they were paid for their [activities], she originally said that she didn’t know. When I expressed concern that she appeared to be [doing an activity] as a professional [activity participant] but did not know if she was being paid or not, she changed her evidence to say that they were paid but that she didn’t know how much because [the first applicant] looked after the money. It is implausible, and I do not accept, that she would have no knowledge about they money she was being paid to [do an activity] in [venues] with [the first applicant].
[The first applicant] also says that he made contact with three other [group] members to form the [group]. According to his evidence, he contacted them in 2014 and was the manager of [group] until they arrived in Australia in 2016. If this were true, it is inconceivable that he would not be able to later identify who the members of the [group] were. In a request for information dated 23 June 2023, [the first and second applicants] were asked, among other things, to give details of their [group] including the name of the [group] and its members. The applicants responded to this request for information but did not give the other [group] members’ names. It is open and reasonable to conclude from this that they did not know the names, and that is the finding that I make. In his evidence to me, [the first applicant] gave two first names and one full name for his other [group] members. I place some weight upon his ability to now recall this information, but I also place weight upon the fact that he still could not recall full names for all three of them. It is implausible that [the first applicant], as the person who contact the other [group] members for the purposes of forming [the group], and who acted as [group] manager as he has claimed, would not still be able to recall in more detail the names of the other [group] members.
[The first applicant] says that the [group] arrived in Australia together. They never [did an activity] in Australia, and after three days [the first and second applicants] moved from Melbourne to Sydney to stay with family. There was no contact with other member of [the group] after they moved to Sydney.
In contrast, [the second applicant] says that [the group] did [do an activity] in Melbourne in the first few days after they arrived, and that they kept irregular contact with the [group] members after they moved to Sydney. I raised this inconsistency with [the first and second applicants], but I do not accept their response that they did in fact [do an activity] but it was only in a small [venue] and so [the first applicant] did not think that it would count.
I have reflected on the fact that [the first and second applicants] were granted [a] visa, and that there presumably there was sufficient evidence to satisfy a delegate for that purpose.
However, any weight that I place upon a visa previously being granted to them on the basis of being [activity participants] is outweighed by the inconsistencies and impossibility in the evidence before me. The strength of this leads me to find that they are not genuine [activity participants] who travelled to Australia as part of a [group] for pre-arranged [activities]. This is a finding that reflects negatively on the credibility of their claims more broadly.
Involvement with the Democratic Party of Albania
[The first applicant] claims to have a profile as a member of the PD party who was involved as an election observer in 2015.
[The first applicant] says that his interest in politics started around [Year]. When asked to explain in more detail, he described in very general terms about being associated with an un-named political party. When asked to name the party, he delayed before responding that the party doesn’t exist anymore. When asked again about the party name, even if it does no longer exist, he delayed further before finally responding with the Democristian Party. [The first applicant] became increasingly agitated as I sought to clarify the party name with him, and I am concerned about his difficulty identify and describing the political party that is said to have started his interest in politics.
[The first applicant] claims to have then joined the PD party in around [Year], but was unable to give any clear reasons why he did so or what attracted him to it. I do place some weight upon his ability to recall periods that the PD was in government, but I find that his inability to explain why he became active in a political party and why he changed parties is inconsistent with his claim to be actively involved as a polling observer for the PD during multiple elections.
I have reflected on the documentary evidence said to support [the first applicant]’s membership in the PD, but I have very serious concerns about the genuineness of those documents. One document said to be from the PD which is in a language other than English contains the partially handwritten date ’13.09.2016’ in the top right corner. The document that is said to be an English translation contains a typed date that appears to have been changed by hand. The original also contains the number ‘2003’ in bold in the body of the letter. The English translation does not include the number ‘2003’ but does include ‘2013’ in a similar location. The person named in the certificate has ‘[Name]’ as a middle name, yet no other documents including [the first applicant]’s passport, include a middle name.
Most importantly, though, the English translation certifies that [the first applicant] is a member of the DP, and also that ‘[h]is family has been active in every election campaign.’ Not only is the reference to involvement in ‘every election campaign’ incredibly vague and implausible, but it is also inconsistent with [the first applicant]’s oral evidence to me that his family were not actively involved in politics. When asked to comment on this, he simply says that his family are not involved in politics and that his certificate from the PD party must be wrong.
The strength of these concerns leads me to find that [the first applicant] is not a member of, and has no involvement with, the PD party. I do not accept that he is a member of section 1571 belonging to the group of section 6 no. 6 [Municipality]. It follows that I do not accept that [the first applicant] was an official observer for the PD during elections in 2015.
Assaults by a prominent LSI party member
I accept that the LSI, also known as the Socialist Movement for Integration, is a political party in Albania. As discussed during the hearing, it is not currently the governing political party.[2]
[2] European Forum for Democracy and Solidarity: Albania (>
I have already found that [the first applicant] is not and was not a member of the PD party and did not have a role as a polling observer during elections in 2015. It follows that I do not accept that [the first applicant] was involved in a fight with a person from another party because [the first applicant] observed him interfering with other people at the polling station.
I am also very concerned about the vagueness and inconsistency in [the first applicant]’s evidence regarding the prominent LSI party member he claims to have observed and had an altercation with.
In their written protection visa application, [the first and second applicants] do not identify or name any particular individual(s). They just refer to a ‘well-known member of the LSI political party’. I am concerned that the individual who is said to have physically assaulted [the first applicant] on two occasions is not named in the protection visa application.
The delegate requested [the first and second applicants] to give full details about this incident, including details of the LSI member involved and their position (past and present). They were also requested to provide full details of the LSI member involved in the second assault involving [the first applicant] and the people he was driving.
The applicants gave a submission on 19 July 2023 that included, among other things, a written statutory declaration made by [the first applicant]. In this declaration, [the first applicant] states that “… I have been assaulted by [Mr A]’s group. That the reason for the assault as I was protesting false voting by the LSI party.’ No other details about the LSI party or [the first applicant]’s alleged attacker were given in the statutory declaration or in any other evidence or responses that [the first and second applicants] gave provided to the delegate.
The delegate’s decision identifies [Mr A] as the person [the first applicant] is said to have observed at the polling station and to have become involved in an ongoing dispute with. Because of open-source information that suggested [Mr A] was in jail or remand on 21 June 2015, the delegate did not accept that [the first applicant] observed [Mr A] on that day.
It seems to me that [the first and second applicants] did not explicitly say that [Mr A] is the person [the first applicant] observed interfering at the polling station. [The first applicant]’s declaration is to have been assaulted by [Mr A]’s group. They were requested to provide full details about the incident, however, and the only individual name they have given is [Mr A]. It is open and reasonable to conclude that [Mr A] is the person [the first applicant] claims to have witnessed at the polling station.

If this conclusion were wrong, I would reasonably expect [the first and second applicants] to have given evidence to me about this at an earlier stage in the review. [The first applicant] has given a document titled ‘individual statement, for example, where he repeats his generally vague evidence to have witnessed an important LSI party figure doing something wrong. There is no indication who that person is, but it is certainly not suggested that the delegate was wrong to conclude it was [Mr A].
When I asked [the first applicant] to name the particular LSI party person during the hearing, he repeatedly avoided doing so. Instead, [the first applicant] sought a guarantee from me that the evidence he gave would not get back to people in Albania. I reminded [the first applicant] of my introductory comments about the privacy and confidentiality of the proceedings. Eventually, [the first applicant] agreed to write down the individual’s name on a piece of paper. The name the wrote down is [Mr B].
I explained to [the first applicant] that the name [Mr B] appeared to be new evidence that he is giving after the delegate’s decision, and that I am forced to draw an inference unfavourable to the credibility of that evidence if I am satisfied there is not a reasonable explanation for it wasn’t given earlier. I asked [the first applicant] who [Mr B] was, why that name is different from what is in his earlier evidence and why he has never given that name before. I do not find [the first applicant]’s explanation convincing. Essentially, [the first applicant] says that he has never named [Mr B] before because he is scared to say his name in public. When questioned about why his statutory declaration refers to [Mr A]’s group, [the first applicant] replied that he has never given or written [Mr A]’s name. When I suggested it was written in the statutory declaration that he gave to the delegate and appeared throughout the delegate’s decision, [the first applicant] maintained that it has nothing to do with [Mr A] and he has never given that name.
[The second applicant] was unable to name the person that her husband observed at the polling station and was threatened and assaulted by. Apart from describing him as an ‘important person’, she knew very little about the person who had caused her and [the first applicant] to have fled Albania in fear of lives.
I am satisfied that there is not a reasonable explanation for why the name [Mr B] was not given earlier. It is not included in the protection visa application, despite reference to an important LSI figure. It is not given in any of the written statements or other material given to the delegate, despite multiple requests to provide the full details about the individuals involved. It is not in any evidence or submissions given to me before the hearing, despite knowing that the delegate assessed their claims on the basis of [Mr A] being the person [the first applicant] had observed and been repeatedly assaulted by. In correspondence dated 20 August 2024, the applicants were invited to provide any additional or new information in support of their claim prior to the hearing. No mention was made of [Mr B].
I do not accept that [the first applicant] has been too fearful to give the name [Mr B] prior to his hearing with me. His earlier statutory declaration included the [Mr A], despite his refusal to accept this. There is no plausible explanation why [the first applicant] would be prepared to name [Mr A] in his written statement but not the person he claims to have actually observed interfering with the election and to have threatened and beaten him.
I am also very concerned about other aspects of the evidence regarding [Mr A] / [Mr B].
A certification with English translation is given from [Hospital]. The certification bears no date and lacks any details about the hospital apart from its name. It contains no address, telephone number or any other contact details. It says that [the first applicant] presented at ‘Emergency of [Hospital] and has received the medical treatment after it was damaged.’
In his written evidence, [the first applicant] says that three people entered his taxi and told him to drive to a particular place. When there, he was forced out of the taxi at gun point, tied to a chair and beaten with baseball bats.
When asked about this event during the hearing, [the first applicant] says that only two people entered his taxi and told him where to drive. When outside of the taxi, he was beaten until he fell to the ground. He was beaten in way to avoid showing any visible injuries. When I queried if he was standing, sitting or on the ground when the beating started, he said that he was standing. When I asked how he was beaten with baseball bats in a way that didn’t leave any marks, he denied that baseball bats had been used. I suggested that this was the evidence he has given earlier but he did not accept that. Whilst I accept this is an event that is said to have happened in 2016, and that a person’s memory over such a period of time may not be perfect, I am not prepared to accept this as an explanation for these significant inconsistencies in his account of what happened. I reasonably expect that he would remember if it was two or three people who entered his taxi and forced him at gun point to a secluded location. If he was tied to a chair, I would reasonably expect that to be remembered. If he was beaten with baseball bats, I expect that would be remembered and that it would leave visible marks.
I am therefore comfortably satisfied to conclude that [the first applicant] did not observe [Mr A], [Mr B] and/or any other person interfering with voters at a polling station. He was not involved in a fight at the polling station. He was not taken to hospital on that day.
He did not have two, or three, people enter his taxi and direct him to a secluded location. He was not taken at gun point and tied to a chair. He was not threatened, beaten or assaulted.
[The second applicant]’s [store]
I am prepared to accept that [the second applicant] ran a [store(s)] in Tirane. However, I have not accepted that [the first applicant] observed an important political figure interfering with voters at a polling station, and I have not accepted that [the first applicant] was threatened, beaten or assaulted as a result. It follows that I do not accept that [the second applicant]’s store was visited by LSI party members multiple times every week so that they could give her fine for having store [displays] outside the front of her shop. I place some weight upon [the second applicant]’s evidence to me that her sister still runs a shop in the same location and does not experience any adverse attention from anyone.
Other matters
There are additional matters that I have placed some weight upon in reaching the findings that I have made.
First, [the first and second applicants] travelled to [Country 1] in January 2016 and [Country 2] in February 2016. They have described this as a ‘holiday’ in their visa application. They returned to Albania afterwards. This travel is inconsistent with being threatened at gun point and severely beaten in 2015, and they are unable to provide a reasonable explanation about this.
[The first applicant] also disclosed that he travelled to [Country 3] in 2000 and applied for a visa or permission to remain. He made an application and had his biometrics taken in [Country 3]. He remained in [Country 3] for about one month before returning to Albania because his mother was ill. This travel is not disclosed in his protection visa application. He says that he did not think it was necessary because he only stayed for one month and does not know the outcome of the application that he made. I am not persuaded by this explanation. Question 80 of the visa application form requests information about any country other than Australia the person has travelled to in the last 30 years. He has disclosed shorter trips to [Countries 1 and 2], but not a longer stay in [Country 3]. This reflects on [the first applicant]’s credibility and I place some weigh upon it.
I also place weigh upon [the first and second applicants'] family being of no interest to [Mr A], [Mr B] and/or members of the LSI party. They continue to live and work in [Municipality] in Tirane, Albania. If [the first and second applicants] were of genuine interest to an important political figure, or to members of the LSI party more broadly, it is implausible that members of their family would not be contacted, threatened or harassed. For the avoidance of doubt, I do not accept that the applicant’s sister continued to receive harassment or fines when she took over [the second applicant]’s shop following her departure from Albania. I also find [the first applicant]’s evidence that his own family do not much about his claimed difficulties in Albania as implausible. If he was threatened at gun point, required hospitalisation after an assault and eventually fled Albania out of fear, I do not accept that his family would be aware of these circumstances. I do not accept that he avoided telling them because it would start a blood feud, rather telling his family would be a reasonable and logical step in order to receive help and their protection. Having now being outside of Albania for the last eight years, there is no plausible reason why his family would not know about his claimed experiences and reasons for leaving.
Summary and conclusion
I accept that [the second applicant] had a [store] that is now run by one of her sisters.
I do not accept that [the first applicant] is, or was, a member of the PD party. I do not accept that [the first applicant] was an official observer at a polling station on 21 June 2015 or at any other time. I do not accept that he observed an important member of the LSI party interfering with other voters and became involved in a fight with him. I do not accept that he needed to go to hospital because of injuries he received on that day. I do not accept that he tried to report the assault to the police and that they took no action. I do not accept that [the first applicant] was driving a taxi and was directed to a secluded location where he was held at gun point, threatened and beaten.
I do not accept that [the first applicant] received constant harassment and fines at her [store], or that LSI party members would be hang around and watch or threaten her.
The strength of my concerns regarding the evidence set out above outweighs any weight that that I place upon the corroborative evidence between [the first and second applicants] and the written or documentary evidence they have given in support. The strength of my concern leads me to find that the applicants do not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future.
I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Andrew Verduci
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 4460

7 October 2024

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Immigration

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