2314025 (Refugee)

2314025 (Refugee) [2023] AATA 4576 (6 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2314025
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:David James
DATE:6 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 November 2023 at 1:02pm
CATCHWORDS
REFUGEE – protection visa – East Timor – fear of harm from informal loan provider – no assistance or protection by family or authorities – no response to invitation to comment and loss of right to hearing – vague and undocumented claims, including identity of lender, amount and terms of loan and repayments and incidents of threats or harm – return travel and delay in applying for protection – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411(1)(c), 424A(1), 425(3)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
Hasran v MIAC (2010) 183 FCR 413; [2010] FCAFC 40
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZLVZ v MIAC [2008] FCA 1816
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 8 September 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 the Democratic Republic of Timor-Leste (Timor-Leste), applied for the visa on 16 August 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 8 September 2023. The applicant did not provide a copy of the delegate’s decision with their application for review.
The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant was not represented in relation to 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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (the Department), 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
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Timor-Leste they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Timor-Leste, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application submitted on 16 August 2023 and the annexed copy of the applicant’s Timor-Leste passport;
·The applicant’s application for review of 8 September 2023; and
·The administrative and movement records of the Department relating to the applicant.
Claims for protection
The applicant, in her visa application, outlined her claims for protection as summarise below, being that:
·She fears she will be threatened or killed because of her inability to repay a debt in Timor-Leste. She borrowed a large sum of money at a high interest rate in Timor-Leste;
·She will jobless if she returns to Timor-Leste and she will be tortured and/or killed because she will be unable to pay the interest every month and the capital of the loan will keep increasing every month;
·She is not able to seek help from the authorities or her family because of the large size of the debt and because she had signed documents relating to the loan;
·She did not try to relocate within Timor-Leste as she does not have any relatives in other parts of the country and her relatives are avoiding her because of this debt, she also cannot relocate as Timor-Leste is a small country and she will be easily found; and
·The authorities do not want to get involved in her problem and will not provide her with assistance.
Department interview
The applicant was not offered an interview by the Department.
Delegates decision
The delegate’s decision of 8 September 2023 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant would be able to avail herself of effective state protection on any return to Timor-Leste should she need to do so. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor-Leste, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. In that regard, the delegate found that the applicant could obtain protection from an authority of Timor-Leste, such that there would not be a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 13 October 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 2 November 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Invitation to comment on or respond to information
On 9 October 2023, the Tribunal wrote to the applicant pursuant to s 424A of the Act, inviting the applicant to respond and/or comment on the delegate’s decision of 8 September 2023. The invitation was sent to the last address provided in connection with the review, and advised that if the response and/or comments were not provided in writing by 23 October 2023, the Tribunal may make a decision on the review without taking any further steps to obtain the applicant’s comments and/or response to the delegate’s decision, and that the review applicant would lose any entitlement she might otherwise have under the Act to appear before the Tribunal to give evidence and present arguments.
Cancellation of hearing of 31 October 2023
The review applicant did not respond and/or comment on the information within the prescribed period (by 23 October 2023) and no extension was requested by, or granted to, the applicant. In these circumstances, the Tribunal, noting that s 424A(1)(a) and (b) of the Act were satisfied, has exercised its discretion to make a decision on the review without taking any further action. The Tribunal in this regard notes that the section uses the word ‘may’ and has had regard to the court’s decision in Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40, where the court found that the combined effect of this section with s 425(3) of the Act, is that an applicant loses his or her right to appear before the Tribunal.
The applicant’s claims do not provide any detail or documents as to her loan, and any actual incidents of the applicant being subjected to threats and/or harm. The applicant has also not identified from whom she had obtained this loan, what the amount of the loan was, or who has threatened to harm her. Additionally, the applicant has not described what (if any) contact she has made with her family and Timor-Leste police in relation to these alleged threats and the loan. The Tribunal, having also considered the relevant country information, has therefore decided to proceed to a decision without taking any further steps to obtain the applicant’s response and/or comments to the information, or to have the applicant appear before the Tribunal to give evidence and present arguments.
Therefore, on 24 October 2023, the Tribunal wrote to the applicant informing her that, as she had not responded to the Tribunal’s invitation to comment and/or responded to the delegate’s decision, the Tribunal had cancelled her scheduled hearing that had been listed for 2 November 2023 and would proceed to make a decision based on the information currently before the Tribunal.
Country information
The United Nations, in their 2021 Socio-Economic Impact Assessment of COVID-19 in Timor-Leste, reported that 45.2 percent of the populations working-age group were employed in the economy as of March 2021. However, the report also identified that the participation rate in the economy did not include those persons that were otherwise engaged in subsistence agricultural production. The report stated that when those working in the subsistence agricultural sector were taken into consideration the figure of employment was raised to 61.1 per cent. The report also provided that many jobs are informal in their arrangements and that the overall unemployment rate is 11.9 per cent but raises to 22.1 per cent when young people aged between 25 to 29 years are included.[1]
[1] United Nations in Timor-Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor-Leste’, 2021, p8-10.
The World Bank Group, in their ‘Country Partnership Framework for the Democratic Republic of Timor-Leste for the period of 2020 – 2024’, reported that most of Timor-Leste’s population has been unable to obtain loans from the formal banking sector and, because of this restricted access to finance, many rely upon informal loans.[2]
[2] ‘Country partnership Framework for the Democratic Republic of Timor-Leste for the Period FY2020-FY2024’, World Bank Group, 27 November 2019, p7-8.
Timor-Leste law prohibits unlawful commercial or financial activities and also criminalises conduct involving inflicting harm, and extortion. Although the Penal Code does not specifically provide for offences relating to informal lending practices, other laws do provide for sanctions and penalties for persons who provide loans without being authorised to do so.[3]
[3] ‘National parliament Law No/. 5/2011 of 15 June 2011: Organic Law of the Central Bank of East Timor’, BNCTL, and ‘Regulation No. 2000/8 on Banking Licensing and Supervision’ (Banking Law), UNTAET, 25 February 2020, available Timor-Leste Ministry of Justice official webpage, Regulations.
According to the United States Department of State’s (USDOS) 2022 report on human rights practices in Timor-Leste for the year of 2021, the law prohibits arbitrary arrest and detention and provides rights to individuals to challenge his or her arrest or detention in Court. The law also provides for the right to a fair, timely and public trial, and the independent judiciary generally enforced these rights in Timor-Leste.[4]
[4] ‘Country Reports on Human Rights Practices for 2021 – Timor-Leste’, Bureau of Democracy, Human Rights, and Labor, United States Department of State, 12 April 2022, p 6 Section 1.e.
In their 2022 ‘Timor-Leste Country Security Report’, the USDOS made the following assessment of the Policia Nacional de Timor-Leste (PNTL):
PNTL maintain internal security. The Military is responsible for external security but also augments some domestic security functions. PNTL reports to the Ministry of Interior, and the military reports to the ministry of Defence. The current Prime Minister serves concurrently as the Interior Minister. Civilian authorities maintain effective control over the security forces. Members of the security services have been accused of committing human rights abuses.
PNTL’s policing capability is limited but improving with the assistance from partners in the international community, including the US Government. PNTL continues developing its community policing capacity and is slowly expanding its capabilities in the areas of criminal investigations, personnel/facility protection and traffic control.[5]
[5] ‘Timor-Leste Country Security Report’, Overseas Security Advisory Council (OSAC), Bureau of Diplomatic Security, US Department of State, 21 November 2022, p 3.
In the Asia Foundation’s nationwide ‘Timor-Leste Safety, Security and Justice Perceptions Survey 2022’, it is reported that:
Most respondents who experienced crimes or disputes do not retaliate, but only just over half seek assistance. Overwhelmingly, general public respondents see community leaders as the most appropriate initial avenue for reporting a crime/dispute. However, they take different matters to different types of leaders, and the degree to which they perceive a role for the PNTL varies according to the nature of the issue at hand. Of those who experienced a crime/dispute and sought assistance, 43% first responded to an Aldeia Chief, followed by the PNTL (19%), a lian-na’in (10%) or Suco Chief (8%). Those who seek assistance typically have their issues resolved by the first person they report to and feel that they were fairly treated.
Community leaders report good relationships with the PNTL and see them as most appropriate initial mechanism to report crimes and disputes. Proximity plays the most decisive role in determining from whom people seek assistance.[6]
[6] ‘Timor-Leste Safety, Security, and Justice Perceptions Survey, 2022. Summary Findings’, McLeod A & Denney L, The Asia Foundation, p 6.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to his protection visa application, the applicant claims to be citizen of Timor-Leste and provided a copy of her Timor-Leste passport to the Department. Based on this material, the Tribunal finds that the applicant is who she says she is, and a national of Timor-Leste. Timor-Leste is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[7] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish, or assist in establishing, the claim.[8] This is consistent with the established proposition that it is for the applicant to make his or her own case.[9]
[7] Section 5AAA of the Act.
[8] Ibid (with effect from 14 April 2015).
[9] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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 of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[10] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[11]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[10] Fox v Percy (2003) 214 CLR 118
[11] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[12] A similar approach is taken in the Department’s Refugee Law Guidelines[13] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[14] which both provide useful guidance for this Tribunal.
[12] SZLVZ v MIAC [2008] FCA 1816 at [25].
[13] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[14] UNHCR, re-issued February 2019 at [203]–[204].
Threats of harm to repay informal loan
The applicant claims to fear harm from an informal loan provider in Timor-Leste and that her family and the police will not provide assistance and/or protection to her in Timor-Leste.
The applicant’s claims are vague, and she has not provided any details as to this purported loan but for claiming that she had borrowed a lot of money and pays $540.00 per week together with $250.00 in interest per week. She has not provided any information as to when and how she obtained this loan, from whom she obtained the loan, and how it was paid to her. Further, she states that she cannot seek help from the authorities as she has signed documents in relation to this loan. However, the applicant has not provided any documentation to the Department or the Tribunal as to this loan, nor details of the loan agreement in so far as the total amount borrowed, the amount to be repaid, and the method of repayment. In that regard, the applicant has not provided any documentation, including bank statements evidencing the receipt of the loan and the repayments that have been supposedly paid to date.
Additionally, the Tribunal notes that the applicant has not provided any documentation and/or correspondence, emails or text messages that report any details about this purported loan and requests and/or arrangements for the repayment of this loan.
It is in the view of the Tribunal, implausible that the applicant would not have some documentation in relation to this loan, its terms and payment arrangements, evidence of her payments to date and the current value of the loan; or evidence of any demands for the repayment of the that the applicant and/or her family have received.
Equally, the applicant has not described the threats she has received in the past as to the required payment of the loan nor has she provided any dates as to when such threats were made, by whom and how they were conveyed to her and/or her family. She has also not provided any details as to her dealings with her own family in the context of her claim that her relatives have been avoiding her because of this loan.
For the reasons outlined above, the Tribunal has rejected the applicant’s claims in their entirety because of their vague nature, their lack of detail, and the lack of documents that have been provided to the Department and/or the Tribunal in support of her claims for protection.
Further the Tribunal, noting the country information which has been outlined above at paragraphs 24 to 29, is satisfied that, if the applicant did obtain an informal loan in Timor-Leste and was the subject of threats of harm arising from the non-payment of this loan, she would be able to obtain the assistance and protection of the Timor-Leste police.
Additionally, the Tribunal also notes that the applicant most recently arrived in Australia [in] May 2023, having previously arrived in Australia [in] April 2022 before she returned to Timor-Leste [in] January 2023. The applicant subsequently made her application for a protection visa on 16 August 2023, three months after her last arrival in Australia. The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution he would not have delayed applying for a protection visa.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act.
Additionally, on the information before it, the Tribunal is satisfied that the applicant could, if she so needed, avail herself of effective state protection on her return to Timor-Leste. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons provided 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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion and given the applicant can avail themselves of protection from the Timor-Leste authorities if she so needs to do so, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Timor-Leste.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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 4576

6 November 2023

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Immigration

Administrative Law

Statutory Interpretation

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Standing

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Natural Justice

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