2313757 (Refugee)

2313757 (Refugee) [2023] AATA 4423 (19 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2313757

COUNTRY OF REFERENCE: Vanuatu
MEMBER:Christine Cody
DATE:19 October 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 October 2023 at 10:16am

CATCHWORDS
REFUGEE – protection visa – Vanuatu – particular social group – women – single mother – gender-based violence – sexual slavery – fear of killing – support organisations in Vanuatu – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 411, 426, 499
Migration Regulations 1994, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 August 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 Vanuatu, applied for the visa on 6 June 2022. The delegate refused to grant the visa on the basis that the claims were not credible.
Relevant law is set out in Annexure A.
The application before the Department[1]
[1] There are no non-disclosure certificates on the Departmental file.
Protection visa application form and passport
The applicant lodged a protection visa application form on 6 June 2022 and provided a copy of the biopage of her passport issued [in] 2018.
Protection visa application forms
According to the protection visa application form, the applicant was born in [a named province], Vanuatu, in [specified year]. Her ethnicity is Melanesian, and her religion is Christian. Her status is separated. She speaks, reads, and writes in both Bislama and English. She resided in [a location in] Port Vila until she left Vanuatu for Australia. She attended school in Port Vila, completing [level] in [specified year]. She was unemployed until she came to Australia [in] January 2020. She provides no details of any family members.
Her protection visa claims were set out in the form as follows:
The country from which this applicant is seeking protection and cannot return to?
Vanuatu
Provide reasons why this applicant left that country or those countries:
I am a single mother who has been a victim of physical and sexual abuse. During the 2 years I lived with him I was often snubbed and beaten. Hard mental abuse was like slapping me, punching me in the face, pulling my hair and pushing me to the ground. I’ll be angered hard by him if he doesn’t comply with his request. She was an insane boyfriend, drunk leg and committed a crime. He’s a guy who doesn’t work and always expect money from my hard work. All the money was taken away by him and acted to hit me if I went against his will. My soul and heart fell apart when she was so brave to trade myself for sex gratification for his friend. That unfortunate night I acted and was determined to run away from his house because I couldn’t stand his demonic temperament. He insisted on selling me as a sex slave. I went on to get help from my cousin to hide from him who was incompetent. With his help I survived the threat and intimidation of his actions who acted to kill me alive. But after that I feel very grateful to receive a good job and move to Australia.
Did this applicant experience harm in that country?
Yes. My ex-boyfriend would act violently if he was too drunk and drugged. And I used to be a victim of it, beaten, punched in the face, hit and kicked. My whole body became sick and bruised. He also insisted on having sex even though I wasn’t willing to.
Did this applicant seek help within the country after the harm?
No. I became a phobia and was always in fear. My life doesn’t change like being in prison. I felt very depressed and ashamed to tell me about my problems. So I acted quietly without reporting to the police.
Did this applicant move, or try to move, to another part of that country?
No. I didn’t think I was going to move to Australia. I moved in after getting sponsored by work.
Explain what the applicant thinks will happen to them if they return to that country?
The same thing, abusement in & out.
Does this applicant think they will be harmed or mistreated if they return to that country?
Yes. Torturely both mental and physical was be abused.
Does this applicant think the authorities of that country can and will protect this applicant if they go back?
No. At my country there are organisations or society that are responsible for protecting the rights of women but as mentioned I am afraid to take act because it does not hold directly threatened by my ex former. While I must think, may need Protection on myself and my family too.
Does this applicant think they would be able to relocate within that country to an area where they would not be harmed?
Yes. I am struggling to protect myself safely after what has I faced on. I don’t want the same things to repeat in my life. I feel safe and freedom here and want to build a new life.
The delegate’s decision record[2]
[2] A copy was provided to the Tribunal by the applicant
The decision record confirms that the applicant’s protection visa application was lodged on 6 June 2022. The delegate refused to grant the visa on the basis that the written claims did not provide a sufficient basis to be satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in Vanuatu. The delegate considered that the applicant’s protection claims lacked substantiating details, although the applicant had been given the opportunity to provide all of the details of their protection claims, which was specified in the decision record as follows:
- The application form that they completed informed them that they should provide all of their claims for protection and all documentation or other evidence to support their claims. It also informed the applicant that a decision could be made on the information provided in their application.
- On 14 June 2022 the applicant was sent an acknowledgement of valid application correspondence which advised them they could provide additional information relating to their claims and how they could provide this. The correspondence also informed the applicant that the decision on their application could be made without another opportunity for them to present any further information.
Further, the decision record stated that: On 14 July 2023 the applicant had been sent correspondence inviting them to provide additional information about their claims under s56 of the Act. The s56 invitation advised the applicant that their statement of claims lacked substantiating details such as dates and locations, and supporting documentation, in regard to their claims, and that no further evidence to support their claims had been provided. This correspondence also advised the applicant that, in order to be satisfied that their claims for protection were genuine, they were invitedto provide (in summary):
- Evidence of her children and a relationship with them;
- Details of her ex-boyfriend and their relationship;
- Details and evidence to support her claims that her ex-boyfriend was physically abusive;
- Whether the applicant has been in contact with her ex-boyfriend since leaving Vanuatu;
- Details of her cousin and any other family support;
- Details of any police reports or attempted contact with the authorities in Vanuatu;
- Whether the applicant sought help in Vanuatu;
- Why the applicant would still be a target of harm since so much time has passed since she came to Australia; and
- Why the applicant cannot reside in another area of Vanuatu.
The decision record also stated: This correspondence also advised the applicant that, in order to be satisfied that their claims for protection were genuine, they were invited to provide reasoning for the delay in lodgement of their protection visa as over two years had passed since they arrived in Australia and raised their claims. This correspondence also advised the applicant that, if they could not provide copies of documents or details of their claims as they were invited to provide, they should provide a detailed explanation of why they could not provide these documents and details, and of the efforts they made to obtain these documents. This correspondence also informed the applicant that if they did not respond to the invitation within the specified time frame, the department could decide the application with the information it had at that time without asking them again. The correspondence also advised the applicant that, if they could not respond to the invitation within the specified time frame, they should contact the department through email or their ImmiAccount, attaching a letter explaining the reason, and requesting more time to provide the information.
The delegate did not accept the claims that the applicant is unable to return to Vanuatu because she is a single mother who has suffered abuse by an ex-boyfriend, and as a result is afraid and depressed, and that she faces a real chance of serious harm or a real risk of significant harm upon return. The delegate was not satisfied that the applicant’s claims were made out.
The Tribunal
On 5 September 2023 the applicant lodged an application for review to the Tribunal.
On 6 September 2023, the Tribunal sent the applicant an acknowledgement letter, confirming that it is important that she keep the Tribunal informed of any change in her contact details, and she was requested to provide any relevant documents or information to the Tribunal as soon as possible. No information or documents were provided.
On 6 September 2023 the Tribunal requested by email that the applicant provide to the Tribunal a copy of the relevant documents from the delegate. On 8 September 2023 she provided a copy of the delegate’s notification letter and decision record to the Tribunal.
On 27 September 2023 the Tribunal sent the applicant an invitation to attend a hearing on 18 October 2023 at 2.00pm. She was informed that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone, and she was thus invited to give evidence and present arguments at a hearing. She was requested to complete and return the “Response to hearing invitation” within 7 days, and to provide all documents she intends to rely on to support her case by 11 October 2023. The applicant was advised that if she was not able to appear as scheduled at the hearing, for instance, if she was not available on this day or if he believed that she would have trouble participating in the hearing as arranged, she was requested to let the Tribunal know this as soon as possible. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The invitation also stated that if she did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the review without further notice.
The applicant did not respond to the hearing invitation.
The Tribunal sent the applicant two SMS reminders about the hearing, 5 business days and one business day before the scheduled hearing.
The applicant did not appear before the Tribunal on the day and at the scheduled time and place of the hearing. There is also no record of the applicant contacting the Tribunal by any other means at the scheduled time, or before or after, to explain why she did not attend the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) and the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. The Tribunal has not received any response. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
CONSIDERATION OF CLAIMS AND EVIDENCE
Country of reference
The applicant produced her passport issued by the government of Vanuatu to the Department, and the Department accepted that he was a citizen and national of Vanuatu and assessed her claims against Vanuatu. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Vanuatu, and that the appropriate country of reference for the assessment of the refugee claims, and the receiving country for the purposes of the complementary protection claims, is Vanuatu.
Satisfaction of claims
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70).
In the circumstances where an applicant does not attend a hearing to which he or she is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:
As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.
The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if she returns to Vanuatu.
The applicant has only provided an application form and has not taken the opportunity to provide more details on her claims, either to the Department as requested[3], nor has she provided any additional documents or information to the Tribunal after her application had been refused by the Department. She did not take the opportunity to provide any additional detail either in writing, or orally at a hearing to the Tribunal. The Tribunal had requested the Department files relating to her visa applications to come to Australia, however these did not contain relevant information.
[3] As set out in the delegate’s decision record
The Tribunal had a number of concerns with the applicant’s claims and considered that there was a lack of detail and information.
The applicant has not stated when the relationship with her boyfriend started, she has not provided his name, nor details of where he lived, including how far away from her residence. She has not stated whether she lived with any family members in Vanuatu and whether she sought help from family members during the 2 years she was in a relationship with him.
The applicant states that she is in contact with her family but does not specify any family members in her application form, and elsewhere she states that she has no members of a family unit: no parents, siblings or children. In her claims she states that she is a single mother but provides no detail of any children; including their ages, where they currently reside, whether they are at risk and if so, why she left them behind. She has not explained why she claims to be a single mother if she has no children. She also refers to a cousin but provides no details of this cousin. Her family details are also relevant because she claims that her family also needs protection, but she does not specify who, or why, or when this need arose.
The applicant obtained her passport [in] 2018. She has not explained what attempts she made to leave Vanuatu thereafter, nor why she did not depart Vanuatu until January 2020.
Further, given her claim that her ex-boyfriend wanted to kill her, and the claims of serious and significant harm she faced and she fears if she returned, she has not explained why she delayed 2.5 years after her arrival in Australia to claim protection. The Tribunal would expect that she would seek protection shortly after arriving in Australia, and it notes that the delegate also raised this as an issue; but she has provided no explanation
In one part of her protection visa application, the applicant claims that her ex-boyfriend expects money from her hard work, yet in another part of the form she claims that she had never been employed. She also says that she supported herself from her “own money savings” but she does not specify the source of this money. She claims that “all the money was taken away by him” but she has not explained how much, when, how and why he took “all the money”.
The applicant claims that her boyfriend abused her physically and mentally, and that when he wanted to sell her as a sex slave, she decided to run away. She does not say when this occurred, nor how she managed to escape his house. She also does not explain why she went to his house if he had been so abusive for 2 years. She indicates that someone was incompetent but it is not clear who. If it was her partner who is incompetent at finding her, she has not explained why she had to leave Vanuatu. If it was her cousin who was incompetent, she has not explained why, given that she appears to say that he managed to hide her.
She claimed that her cousin helped her thereafter survive the threat and intimidation of her boyfriend’s actions. She doesn’t provide detail as to the period of time between when she left his house and when she left Vanuatu and what occurred in this time, including what attempts were made if any by her boyfriend to find her. If no attempts were made and the relationship was over, she has not explained why she faces harm upon return.
She has not stated, in the address section of the application form, that she lived anywhere else other than at the home where she was born and raised. This is inconsistent with her claim that she was, for an unspecified period, in hiding. If she had gone into hiding, it would be expected that she would have specified where she resided and for how long.

It appears that the applicant successfully stayed away from her ex-boyfriend and managed to leave Vanuatu without him stopping her. She has not explained this.
She has not explained why she would not be able to relocate within Vanuatu if she returned.
She claims that she “acted quietly” without reporting to the police however she has not explained what this means. Further, she acknowledges that there are organisations in Vanuatu responsible for protecting the rights of women. She claimed that she did not contact them because she was threatened by her ex-boyfriend. She did not explain the details of the threats, nor which organisations she considered approaching, nor why she did not seek a protection order. Country information indicates that:
Countries have progressively introduced family protection legislation from 2008 onwards [Vanuatu was the first within the Pacific to do so], which provides the basis for a protection order regime… [There are] short or immediate orders, and longer term orders, that require a civil burden of proof (on the balance of probabilities), and can be tailored to meet the circumstances of the applicants. Second, they have an emphasis on family and collective safety…. Orders are typically issued by the courts, but …. in [Vanuatu] there are authorised or prescribed persons who can issue short-term orders ... discussions about accessibility did include the use of phone and email to issue orders rather than applying in person…. it was very apparent that various non-government organisations or centres act as important advocates for individual survivors, and contribute to creating systems that work effectively. In most countries, it is civil society groups that are taking the lead on advocacy and support services for survivors… Our conclusion after the symposium was that, while they are not perfect, family protection orders do provide an important option for survivors of domestic and family violence who seek protection and reparation through Pacific justice systems, and that this government-sanctioned response requires continued investment and should not be undervalued[4]
[4] DEVPOLICY BLOG: Are family protection orders helping to prevent domestic and family violence in the Pacific region? by Judy Putt and Lindy Kanan, 21 March 2023, >
As noted above, the Tribunal must be satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm if she returns to Vanuatu. On the evidence before it, the Tribunal is not satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm for any reason if she returns to Vanuatu.
The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are made out, other than those claims accepted above, the Tribunal rejects all the various claims made and it is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion in the reasonably foreseeable future in Vanuatu, nor that there is a real chance she would be persecuted for one or more of those reasons anywhere in Vanuatu. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Vanuatu, there is a real risk that the applicant will suffer significant harm.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - 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 below.
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 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, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 4423

19 October 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Standing

Statutory Construction

Jurisdiction