2313431 (Refugee)

2313431 (Refugee) [2023] AATA 4696 (18 December 2023)
CORRIGENDUM
DIVISION:Migration & Refugee Division
CASE NUMBER:  2313431
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Nathan Goetz
DATE OF DECISION:  18 December 2023
DATE CORRIGENDUM
SIGNED:15 January 2024
PLACE OF DECISION:  Melbourne
AMENDMENT:  Paragraph 44 of the decision contains a typographical error and is amended to read:

Given that there was no reference to the applicant leaving Timor-Leste to escape domestic violence from the applicant’s husband and his family, the Tribunal wanted to know what the applicant had told the unknown person who had completed the applicant’s protection visa application, presumably at her instigation. The applicant’s evidence about this was not particularly clear. The applicant’s response to this question was to firstly suggest that any problems in the protection visa application was because she did not speak English, which did not answer the Tribunal’s question about whether the applicant told this person about her reasons for claiming protection when she told this person to fill out the protection visa application. She later said that she told this person she needed help and had asked him to apply for a visa and that the person ‘didn’t ask me’ about her protection claims. The applicant never provided a direct answer to the Tribunal’s question about whether she had told him about her experiences of harm concerning her husband in Timor-Leste and that this was the reason she feared returning to that country.
Nathan Goetz
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2313431

COUNTRY OF REFERENCE: Timor-Leste
MEMBER:Member Nathan Goetz
DATE:18 December 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 December 2023 at 5:41pm
CATCHWORDS
REFUGEE – protection visa – Timor-Leste – particular social group – victims of family violence – childlessness – employment – economic conditions – crime – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2; r 1.12
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.
The applicant was not represented in the 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.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
BACKGROUND
Previous visa applications and travel to Australia
On 18 May 2017 the applicant was offshore and granted a temporary work visa. The applicant arrived in Australia [later in] May 2017 holding this visa. The applicant departed Australia [in] November 2017 and that visa ceased on 21 November 2017.
On 27 April 2018 the applicant was offshore and granted a temporary work visa. The applicant arrived in Australia [in] May 2018 holding this visa. The applicant departed Australia [in] November 2018 and that visa ceased on 12 November 2018.
On 3 April 2019 the applicant was offshore and granted a temporary work visa. The applicant arrived in Australia [later in] April 2019 holding this visa. The applicant departed Australia [in] September 2019 and that visa ceased on 10 October 2019.
On 14 June 2022 the applicant was offshore and granted a temporary work visa. She did not travel to Australia. This visa ceased on 31 March 2023.
On 31 March 2023 the applicant was offshore and granted a temporary work visa. The applicant arrived in Australia [in] April 2023 holding this visa. On 18 January 2024 this visa is scheduled to cease.
Current visa application
On 11 August 2023 the applicant applied for the protection visa that is the subject of this decision record.
On 31 August 2023 the delegate refused to grant the applicant the protection visa on the basis that the applicant did not satisfy s 36(2)(a) or (aa) of the Act.
On 31 August 2023 the applicant applied to the Tribunal for review of the decision.
On 30 November 2023 the Tribunal wrote to the applicant under s 425(1) of the Act and invited the applicant to appear at a Tribunal hearing scheduled for 9:30am on 15 December 2023.
On 15 December 2023 the applicant appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal considered all the evidence provided in support of the visa application and the review application, including the oral evidence provided at the Tribunal hearing.
As the applicant was unrepresented in the review application, the Tribunal explained the criteria for the protection visa at the Tribunal hearing and explored with the applicant the basis for which she claimed to meet the criteria for the protection visa.
The Tribunal thought this prudent because in the protection visa application form, the applicant had written about the economic situation in Timor-Leste but did not identify that the economic situation in Timor-Leste would result in the applicant facing a real chance of serious harm due to her race, religion, nationality, membership of a particular social group or political opinion. She also did not claim in the protection visa application form that the economic situation in Timor-Leste would result in the applicant facing a real risk of significant harm (as defined in the Act) in Timor-Leste. The applicant’s oral evidence addressing these points is detailed below.
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 (DHA), 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.
There is no DFAT Country Information Report on Timor-Leste.
Evidence about identity and country of reference
In the protection visa application form, the applicant identified as a female citizen of Timor-Leste who was born on [date] in [Village 1], Timor-Leste.
She detailed her residential address in Timor-Leste as [in Village 1], Timor-Leste.
In support of her identity, the applicant provided the biodata page of a passport issued under the authority of Timor-Leste in the applicant’s name [in] 2021.
In the protection visa application form, she did not claim to hold any other citizenship or nationality and did not claim that she had the right to enter and reside in another country.
Evidence about membership of the same family unit
In the protection visa application form, the applicant declared they had no family in Australia and declared that she was raising her own protection claims. She was not seeking to be granted the protection visa on the basis of membership of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Evidence about the completion of the protection visa application form
In the protection visa application form, the applicant declared that she received no assistance completing the protection visa application form. She did not appoint another person to receive communication concerning the protection visa application. When reading the form, it appears that the applicant completed it herself.
However, during the course of the applicant’s oral evidence at the Tribunal hearing, it became apparent that the applicant had been assisted by another person to complete the protection visa application form. This was disclosed in the course of the Tribunal’s questioning concerning the criteria she claimed to meet for the grant of the visa.
The applicant was asked about which criteria she claimed to meet for the grant of the visa. She told the Tribunal that she met the criteria for the grant of the grant of the 866 visa, but was not able to specify whether it was on the basis that she would be persecuted in Timor-Leste per s 36(2)(a) of the Act, or on the basis that there was a real risk she would suffer significant harm per s 36(2)(aa) of the Act. The applicant told the Tribunal that she had told somebody to fill out the visa application because she did not speak English.
She then suggested to the Tribunal that she met the criteria for the protection visa because she ‘wanted to work in Australia so she could make money’ and had ‘problems in Timor-Leste with her family and husband.’
The applicant told the Tribunal that she did not know the person who helped her complete the protection visa application. The assistance was provided over the phone, and she never saw the person directly.
Evidence concerning protection claims raised in the protection visa application form
In the protection visa application form, it was claimed that the applicant left Timor-Leste to ‘get some new life environment which is more safe country with very good economic amongst the in the world.’ She claimed that she had not experienced harm in that country and had not moved within that country because he would ‘will facing the same issue.’
In response to the question about what she thought would happen to her if she returned to Timor-Leste she wrote ‘Nowadays, there is much criminal cases and very bad economy. My life is somewhat affected because of the rising cost of living an the basic stuff becomes very expensive while my earning every month is still the same.’ She wrote that she believed she would be harmed/mistreated if she returned to Timor-Leste because ‘will hard ot get a life with all living cost is terrible high and much criminal issue incurred. Thefts and snatch cases are so rampant and common in Timor-Leste nowadays. I have to support in financial to my parents and also to support my siblings education too.’
In response to the question about whether the applicant thought that the authorities in Timor-Leste would and would protect her, it was indicated that they would not. When asked for details, the response was ‘No further comment on this issue. So many complaining about the government bodies nowadays.’
The delegate decision record addresses the claims concerning the economic situation and security situation in Timor-Leste. The applicant provided the Tribunal with a copy of that decision record.
At the Tribunal hearing, the Tribunal noted the contents of the applicant’s protection visa application form and asked her to identify how those claims meant that she met either s 36(2)(a) or (aa) of the Act. The applicant told the Tribunal that the claims in her protection visa application were not her protection claims. Her protection claims were those based on her husband and his family. She told the Tribunal that it was not her decision to put the economic and security situation in her protection visa application form. She told the Tribunal that the person assisting her to lodge the protection visa application did not tell her what claims were put into the protection visa application form.
Evidence concerning protection claims raised at the Tribunal hearing
In the protection visa application form, the applicant declared that she was ‘never married.’ The form asked for the information about members of the applicant’s family which the form identified as a brother named [name] who resides in Timor-Leste but did not identify that the applicant had a husband or was married. It was for that reason that the Tribunal was surprised by the applicant’s assertion that she had problems in Timor-Leste with her husband.
The applicant told the Tribunal that she had problems in Timor-Leste because her husband and his family ‘discriminated’ against her because she had not had children. She claimed that it was for this reason that she went to work in Australia and ‘distance’ herself from the problem. The applicant said that she was ‘never married’ as described in the form because she was not married in a church. She suggested to the Tribunal that she was ‘married in accordance with culture.’ She suggested that because she did not have children, her husband and his family hit her and threatened her. In the protection visa application form the applicant declared that she had not experienced harm in Timor-Leste.
At the Tribunal hearing, she claimed that she was married [in] March 2020 and started living with her husband at that time. They stopped living together on 12 April 2021. The protection visa application form discloses no change of address by the applicant from 12 April 2021.
As the applicant gave evidence that she had been hit, the Tribunal asked the applicant whether she had reported the assault to the police in Timor-Leste. She said that she did, but that her husband continued to beat her and took no responsibility for his behaviour because she did not provide him with children. She did not claim in the protection visa application form that she had complained to the police about assaults or indicate what action the police took, if any, against her husband.
Given that there was no reference to the applicant leaving Timor-Leste to escape domestic violence from the applicant’s husband and his family, the Tribunal wanted to know what the applicant had told the unknown person who had completed the applicant’s protection visa application, presumably at her instigation. The applicant’s evidence about this was not particularly clear. The applicant’s response to this question was to firstly suggest that any problems in the protection visa application was because she did not speak English, which did not answer the Tribunal’s question about whether the applicant told this person about her reasons for claiming protection when she told this person to fill out the protection visa application. She later said that she told this person she needed help and had asked him to apply for a visa and that the person ‘didn’t ask me’ about her protection claims. The applicant never provided a direct answer to the Tribunal’s question about whether she had told him about her experiences of harm concerning her husband in [named country] and that this was the reason she feared returning to that country.
The Tribunal noted that the applicant received the delegate decision record and asked whether she read it. She indicated that she received the document, which she identified as containing 12 pages and that she read it. She confirmed that the claims concerning her husband and his family were not contained in the decision record. The Tribunal asked why the applicant did not raise the protection claims concerning her husband and his family when she applied to the Tribunal for review of the decision. The applicant did not provide an explanation but instead said that ‘at that time I explained it to the person who just did it’ and was told it would be ok. She said that she explained it to the person in September 2023 when the protection visa application was refused.
In response to the Tribunal’s concern that the claims concerning the applicant’s husband family may be fabricated because included in the protection visa application form, the applicant disputed that this was the case. She told the Tribunal that she was at the Tribunal hearing to tell the truth and that when she ‘had her visa done’ she explained to the person but that person did not follow what she said.
Evidence concerning the timing of the visa application
The applicant last arrived in Australia [in] April 2023 but did not apply for a protection visa until 11 August 2023. The Tribunal asked the applicant why she did not lodge a protection visa shortly after her arrival given she claimed in her oral evidence that she left Timor-Leste because of her husband and his family. The applicant told the Tribunal that when she arrived in Australia she was working at a farm and was not able to apply for a protection visa.
The applicant told the Tribunal that the visa she held when she entered Australia was for temporary work. She told the Tribunal that she stopped working in May 2023 because the work was not good and decided to apply for a protection visa four months later. She told the Tribunal that one of the requirements for the temporary work visa is that she works. The applicant told the Tribunal that her plan when she arrived in Australia was to work and make good money so she could support herself and return to Timor-Leste.
FINDINGS AND REASONS

The issue in this case is whether the applicant is a ‘refugee’ or meets the requirements for ‘complementary protection’ or a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’
If the Tribunal is satisfied that the applicant meets the criteria for the protection visa, the correct of preferable decision is to set aside the decision of the delegate dated 31 August refusing to grant the applicant the protection visa and remit the visa application back to the delegate for reconsideration with a permissible direction concerning the criteria the Tribunal has found the applicant satisfies.
If the Tribunal is not satisfied that the applicant meets the criteria for the protection visa, the correct of preferable decision is to affirm the decision of the delegate decision refusing to grant the applicant the protection visa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal is satisfied that the applicant is a female citizen of Timor-Leste with no right to enter and reside in any other country. The Tribunal is satisfied about this due to the applicant holding a passport issued in her name and because there is no evidence that the applicant has a right to enter and reside in any other country.
Therefore, for the purpose of the protection visa application assessment, the country of reference is Timor-Leste.
The Tribunal is not satisfied that the applicant is a member of the same family unit of a person who satisfies s 36(2)(a) or (aa) of the Act. The Tribunal concludes that the applicant is not a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act because the applicant concedes that she is not, and there is no evidence to demonstrate otherwise.
Therefore, the applicant is not a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
The Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm in Timor-Leste due to her race, religion, nationality, membership of a particular social group, or political opinion, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her removal from Australia to Timor-Leste, there is a real risk she will suffer significant harm because of the economic situation or security situation in Timor-Leste.
The Tribunal comes to that conclusion of the basis that the applicant conceded at the Tribunal that she did not have protection claims arising from the economic situation or security situation in Timor-Leste because she had not raised those claims and they were put into the protection visa application form without her instructions.
Concerning the protection claims that the applicant submitted did give rise to Australia having protection obligations to the applicant, the Tribunal is not persuaded that there is any truth to the claims for the following reasons.
First, the Tribunal accepts that the applicant used another person to complete her protection visa application form. However, the Tribunal’s assessment is that the applicant has not been truthful about much of the detail concerning the application for the protection visa. The Tribunal struggles to accept that the applicant would not be able to provide the Tribunal with something as basic as the identity of the person who assisted her to complete this form. She provided the Tribunal with no information about how she came to be in contact with this person or any information that could reasonably be expected to accompany a person’s oral evidence recounting their own lived experiences. The Tribunal’s assessment is that the applicant provided vague evidence about the lodgement of the protection visa application because the protection visa application was lodged for reasons not connected with Australia’s protection obligations.
Second, the applicant’s evidence about whether she told the unidentified person about her protection claims concerning her husband was vague and appeared to change over time. She could not answer a question as basic as whether she told this person about her past experiences of harm and fear of future harm concerning her husband at the time the protection visa application was lodged. It was a pretty basic question, and the answer would have been either yes or no. The Tribunal is satisfied that the applicant did not address the question directly because she was mindful of the fact that if she said yes then the question would arise about why this person would choose not to include that information in the protection visa application form and instead put down claims concerning the economic situation and security situation in Timor-Leste instead.
The Tribunal views the fact that the applicant could not provide information about something as basic as whether she told the person assisting her about the claims concerning her husband and his family at the time the protection visa application was being lodged as demonstrating that the applicant had not in fact raised those claims at that time. The Tribunal’s assessment is that if there was any truth to those claims they would have been included in the protection visa application form because it would make no sense for the person assisting her to not include those claims and instead put other claims that the applicant did not actually claim.
Third, the timing of the raising of the protection claims concerning the applicant’s husband and his family came on the day of the Tribunal hearing (more specifically, during the Tribunal hearing). She did not raise those claims when she applied to the Tribunal for review of the decision, despite reading the decision record which did not raise those claims. The Tribunal is not persuaded that the reason for her failing to raise the protection claims concerning her husband and his family was because the unknown person who assisted her told her that it would be ok. The Tribunal’s assessment is that if there was any truth to the protection claims concerning the applicant’s husband and his family and that for some reason those claims were not included in the original protection visa application form, the applicant could have included those protection claims, and provided an explanation about why those claims were not included in the protection visa application form, at the time she applied to the Tribunal for review of the decision. She did not. The Tribunal is satisfied that she did not do so because those claims were fabricated by the applicant at the time of the Tribunal hearing.
Fourth, the timing of the protection visa application was not consistent with the applicant’s narrative about her reason for leaving Timor-Leste. While the Tribunal accepts that the applicant remains on a temporary work visa to date, the timing of the protection visa suggests to the Tribunal that the protection visa was lodged for reasons not connected with Australia’s protection obligations, as it was lodged some four months after the applicant ceased working. It did not appear to the Tribunal that there was any significant event that occurred in August 2023 in connection with her protection claims that would result in the applicant deciding at that time to lodge a protection visa. The Tribunal finds it more likely that if the applicant’s protection visa claims concerning her husband and his family were true, she would have lodged the protection visa application shortly after her arrival in Australia, instead of some four months after she ceased working in Australia.
Fifth, the Tribunal struggles to accept that if the applicant was married ‘culturally’ to the person she claims assaulted her she would not identify that she was married in the protection visa application form or identify that she was separated from that person in the form. The applicant’s explanation about why she did not declare that she was married in the protection visa application form was very nuanced for someone who provided vague details about much of her evidence. The Tribunal is not persuaded by the applicant’s explanation that she did not detail that she was married because it was not in a Church, and she was ‘culturally married.’ The Tribunal is satisfied that if the applicant was ‘culturally married’ to a person who had assaulted her and been assaulted by his family, she would have declared the relationship in the protection visa application form.
In conclusion, the Tribunal is not satisfied that the applicant was culturally married to a person in Timor-Leste who assaulted her for not having children (or for any other reason). The Tribunal is not satisfied that the applicant was assaulted by this person’s family, or that the applicant reported the assault to police who took no action. The Tribunal is satisfied that the applicant manufactured those protection claims at the Tribunal hearing so she could be granted a protection visa. There is no truth to them. It follows that there is no risk that the applicant will be further assaulted by a person to whom she was ‘culturally married’ or their family upon the applicant’s return to Timor-Leste because the Tribunal does not accept the applicant’s narrative about being culturally married to a person who assaulted her as truthful. The Tribunal is not satisfied that the applicant is of adverse interest to any person, group or authority in Timor-Leste.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Timor-Leste because of her race, religion, nationality, membership of a particular social group or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Timor-Leste, there is a real risk the applicant will suffer significant harm.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz

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

[2023] AATA 4696

18 December 2023

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