2314102 (REFUGEE)

2314102 (REFUGEE) [2023] AATA 4548 (6 NOVEMBER 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2314102
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Lilly Mojsin
DATE:6 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 November 2023 at 8:28am
CATCHWORDS
REFUGEE – Protection Visa – Solomon Islands – threats of harm from family and friends – return to the Solomon Islands indicates a lack of subjective fear of harm – wish to stay in Australia to work – effective state protection – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 24 August 2023 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Solomon Islands, arrived in Australia on [date] November 2019, as the holder of a passport of the Solomon Islands.
The applicant applied for the visa on 14 November 2022, claiming to fear harm in the Solomon Islands because he was not able to obtain protection from the police authorities from threats of harm from his family and friends.
The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm, within a reasonably foreseeable future on his return to the Solomon Islands. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the review application.
The applicant appeared before the Tribunal, on 25 October 2023, to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
See Annexure A.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant is a married man with [children]. He is [age] years old and has various [qualifications]. In his PV application, the applicant claimed:
·He was mistreated and received death threats from his relatives and friends in the Solomon Islands because they are aggressive. He did not report them to the police because he solved it in another way. He gave them money.
·In 2007 the applicant opened a [business] in [Town 1] which grew bigger over the years.
·The applicant’s relatives and friends became jealous and wanted a share of the profits.
·Initially the applicant gave relatives and friends some money but they asked for more money.
·The applicant refused and they brought lethal weapons like a knife to the applicant and threatened to kill him and his family if he refused to give them money.
·As a result, he closed his business, fled the country leaving his family behind.
·The applicant claims that he lives in fear every day in the Solomon Islands because of the constant harassment and threats.
·The applicant approached the authorities for protection. The authorities investigated but there was no outcome. They were insincere and wanted a bribe.
·The applicant did not move to other parts of the country for family and financial reasons.
·The applicant fears that if he returned, he will be harmed and mistreated. He will face death threats for the perceived good income he earns in Australia. He claims he might be killed if he returned to the Solomon islands.
·The authorities will not, and cannot, protect the applicant on return to the country. The authorities cannot be trusted and only act if a bribe is offered which the applicant cannot afford
·The applicant will not be able to relocate in Solomon Islands to avoid potential harm. The applicant cannot secure financial support from the government to relocate.
At the Tribunal hearing, the applicant told the Tribunal that he has a small business and his [employees] wanted to take his property. They sometimes harassed him as he did not pay them enough money. I asked what he did about it, if he complained to police and he said that he tried to solve it in a customary way so he gave them a little of bit money. The economy of the Solomons was not good. He closed his business and came to Australia to work.
I put to him that he had claimed he had been mistreated and received death threats from his relatives and friends, he then said he did receive death threats from friends and family.
He returned to the Solomon Islands in July 2022, he was there for 3 weeks as his father passed away. Nothing happened to him and he did not fear any harm.
Asked why he cannot return to the Solomon Islands, he said he needs to stay in Australia and support his family, as he is married and has [children]. They are still at school. He does not fear any harm there, he just wants to work in Australia.
I explained the independent evidence to the applicant that the Solomon Islands have generally functioning laws, an impartial judiciary, and reasonably effective police force in place so that effective protection is available. I put to him that as he returned to the Solomon Islands in 2022, he has no fears about returning. He did not disagree.
I put to the applicant that he had been in Australia for 3 years before he applied for PV and this suggests that this application was made only because it was the only visa he could apply for to remain in Australia. He said that he waited because he came to Australia for seasonal work. I put that he applied for PV as he could not get another visa. He did not disagree.
When asked what he now fears about returning he said “they harassed me and wanted to kill me”. I put to the applicant that nothing happened to him when he returned in 2022. He said that they will harm him again. That is why he decided to stay here.
I put to the applicant that he wants to stay in Australia to work and he does not fear anybody. He said that they will come to his house and harass him and last week his brother called him and they took his engine and boat for no reason. I asked if his brother reported the incident to the police and he said “yes his brother and police solved the problem and they are sharing the engine and the boat”.
INDEPENDENT EVIDENCE
Solomon Islands is an archipelagic state situated in the south-west Pacific Ocean, approximately 2,000 kms to the northeast of Australia. Its land mass of 28,400 km extends over nearly 1000 islands comprising nine main island groups. The capital, Honiara, is located on Guadalcanal, the largest island.
The population of Solomon Islands, estimated to be about 724,462, is predominantly Melanesian (about 95 per cent) although there are also small Polynesian, Micronesian, Chinese and European communities. There are 63 distinct languages in the country, with numerous local dialects. English is the official language but Solomons’ Pijin is the lingua franca for the majority of people.
A 2013 report by the World Bank[1] on the justice system in the Solomon Islands indicates that open conflict, including violence, is generally the result of local-level disputes, such as theft, property damage, political conflict, or accusations of sorcery. Serious offences, such as murder, rape, incest, and severe physical assault are considered to be rare. To resolve local disputes, victims can seek justice through the Kastom system, state institutions, or the church. The Kastom system is ‘the most frequently utilized and relevant justice system’, which is reliant on local ‘chiefs’ to mediate conflict.
[1] justice-delivered-locally-systems-challenges-innovations-in-solomon-islands.pdf (dfat.gov.au)
According to Freedom House’s report ‘Freedom in the World 2023’ Solomon Islands, the judiciary has a reputation for independence, though a severe lack of resources has contributed to case backlogs. Judges are appointed by the Governor-General on the advice of an impartial Judicial and Legal Service Commission. The Court of Appeal is mainly reliant on foreign judges.
There are few major threats to physical security, though crime remains a problem in some areas. While the country has a history of internal conflict, the threat has subsided over the past two decades, thanks in large part to security aid from international partners. The police force, which was disarmed in 2003, has been entirely rebuilt with the help of the Australian-led Regional Assistance Mission to the Solomon Islands (RAMSI), which launched that year. Mostyn Mangau became the first locally appointed police commissioner in 19 years when he took the post in 2020. In the wake of the November 2021 riots, Chinese police were deployed in March 2022 to train the Solomon Islands police officers in combat skills and emergency crowd management. The unpublished security agreement reached with China in April 2022 reportedly allows for the deployment of Chinese armed police to help control disturbances in the country and protect foreign-owned capital assets.
The 2021 United Nations Office of the High Commissioner for Human Rights, Pacific Community, Situational Analysis 2020 report[2] states the following regarding access to justice within the Solomon Islands: Legal aid is available in criminal, family and civil matters, and is administered by the Public Solicitor’s Office. Historically, the Public Solicitor’s Office is overburdened and under resourced, with recommendations made for the government to recruit more lawyers for the Family Protection Unit within the office. Various UN recommendations have reiterated the need to expand services beyond the capital of Honiara and to reactivate the circuit courts in order to facilitate access to judicial services for victims of violence living outside the capital. The [Universal Periodic Review] UPR Working Group (2016) recommended increased budgetary allocation to the training of police officers and the judiciary to ensure that women have equal and substantive access to justice under the Family Protection Act.
[2] Human Rights in the Pacific. A Situational Analysis 2020, Human Rights & Social Development (HRSD) Division, Pacific Community (SPC) and Regional Office for the Pacific, United Nations Office of the High Commissioner for Human Rights, Pacific Community, 2 August 2021
According to the US State Department Report Human Rights Practices, Solomon Islands 2022. The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality. The law provides for the right to a fair and public trial, and an independent judiciary generally enforced this right.
While the law provides criminal penalties for corruption by officials, the government implemented the law inconsistently; officials sometimes engaged in corrupt practices with impunity; and corruption was widely held to be pervasive in the government, especially with respect to the forestry, mining, and fisheries sectors.
The Solomon Islands Independent Commission against Corruption is tasked with preventing official corruption and has investigative and prosecutorial powers. The Office of the Ombudsman is responsible for investigating public complaints of government maladministration.
REASONS AND FINDINGS
On the basis of his Solomon Islands passport, I accept that the applicant is a national of the Solomon Islands and a not national or citizen of any other country or has a right to enter and reside in any country other than the Solomon Islands. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that the Solomon Islands is the applicant’s “receiving country” for the purposes of s.36(2) (aa).
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 the 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.
I accept that the applicant is [age] years of age, married with [children]. His family reside in [location], the Solomon Islands. I accept that the applicant had a [business] that he closed and came to Australia as the holder of a 403 seasonal worker visa.
In his PV application, the applicant claimed that he was mistreated and received death threats from his relatives and friends in the Solomon Islands. He said he did not report to the police, those constantly harassing and threatening him, but solved it in another way. He also claimed that after he refused his family brought lethal weapons like a knife to the applicant and threatened to kill him and his family if he refused to give them money. The applicant, at hearing, explained that his [employees] wanted to take his property. They sometimes harassed him as he did not pay them enough money. He did not report them to the police, he tried to solve it in a customary way and he gave them a little of bit money. When put to him that he had claimed that he had been mistreated and received death threats from his relatives and friends, he then said he did receive death threats from friends and family. I reject his explanation for the inconsistency of who threatened to harm him. I am satisfied his explanation is an attempt to overcome the inconsistent evidence provided.
The applicant also claimed, in his PV, to fear harm returning to the Solomon Islands. Since his arrival in Australia in 2019, the applicant returned to the Solomon Islands in 2022 for 3 weeks, to attend his father’s funeral. When asked why something would happen to him now when nothing happened to him in 2022 when he returned, he responded that they will harm him again. I am satisfied that his return to the Solomon Islands in 2022 indicates a lack of a subjective fear of harm.
Additionally, the applicant arrived in Australia in 2019 and he did not apply for a PV until 3 years after he came to Australia. His explanation was that his 403 visa had not expired. I am satisfied this delay, in applying for a PV, also indicates a lack of a subjective fear of harm
I am satisfied that the applicant did not suffer any harm in the Solomon Islands and he only applied for a PV in order to extend his stay in Australia when his 403 visa was due to expire.
I have considered the applicant’s evidence singularly and cumulatively. I am satisfied the applicant did not suffer serious harm, in the Solomon Islands, for a refugee reason ie. for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
I am required to consider if the applicant will suffer serious harm, for reasons of his race, religion, nationality, membership of a particular social group or political opinion, on his return to the Solomon Islands, within a reasonably foreseeable future.
The applicant did not suffer any harm in the Solomon Islands and came to Australia to work and support his family. The applicant returned to the Solomon Islands in 2022 after his initial arrival in 2019 and does not claim to have suffered any harm during that visit.
The applicant claims he will be harmed and mistreated on his return. The applicant told the Tribunal at the commencement of the hearing that he needs to stay in Australia to support his family. He does not fear any harm there [Solomon Islands] he just wants to work in Australia. He fears he might be killed and will face death threats because of his perceived good income. When I asked the applicant later in the hearing what he fears about returning to the Solomon Islands he said that they will harm him again and that is why he decided to stay here. I am satisfied, as stated above, that the applicant did not suffer any harm in the Solomon Islands when he lived there and I am satisfied he came to Australia in order to earn an income. Therefore I am not satisfied there is a real chance that the applicant will be threatened, harmed, killed or face death threats within a reasonably foreseeable future on his return to the Solomon Islands. I am satisfied there is not a real chance the applicant has a well-founded fear of persecution.
But even were I to accept that the applicant may be killed or harmed or that death threats are made against him, s. 5J(2) of the Act states that a person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Section 5LA(1) of the Act provides circumstances where effective protection measures are taken to be available to a person, including where the relevant State, or a party or organisation is willing and able to offer protection, and the protection is durable and accessible to the person. If protection is provided by the relevant state, the protection should consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
Reliable sources such as US State Department Reports, DFAT and UK Home Office do not suggest that effective protection is not available to the residents and citizens of the Solomon Islands. These sources confirm that the judiciary have a reputation for independence, though a severe lack of resources has contributed to case backlogs. In light of the independent evidence, cited above, I am satisfied that the Solomon Islands have a generally functioning laws, an impartial judiciary that has a reputation for independence, an ICAC, an Ombudsman and a reasonably effective police force in place so that I am satisfied effective protection is available. The applicant did not disagree. Therefore I find that the applicant is able to obtain effective state protection against persecution or serious harm from non-state actors and the authorities in the Solomon Islands are willing, and able, to provide effective protection to the applicant.
The applicant claims his brother reported a recent incident when someone took his engine and boat for no reason. His brother reported the incident to the police, the police solved the problem. I am satisfied this incident indicates that the Solomon Islands police provided his brother effective protection from harm.
I have considered the applicants’ claims and evidence singularly and cumulatively. I am satisfied the applicant did not suffer any harm in the Solomon Islands either before his arrival in Australia or during his 3 week visit in 2022. I am not satisfied that there is a real chance the applicant will suffer persecution for reasons of his race, religion, nationality, membership of a particular social group or political opinion, if the applicant returns to the Solomon Islands, within a reasonably foreseeable future.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
I am required to assess if the applicant will suffer significant harm on his return to the Solomon Islands within a reasonably foreseeable future.
The applicant has not made specific claims for complementary protection separate from those put forward in relation to refugee criteria.
As stated above, I am satisfied that the applicant did not suffer any harm in the Solomon Islands and came to Australia in order to earn an income.
The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life.

There is no evidence that there is a widespread condition of violence in the Solomon Islands therefore I do not accept that there is a real risk of harm from non-state actors.
I accept the applicant closed his business and has concerns about being able to find work if he returns to the Solomon Islands. The applicant has been working in Australia and he has qualifications in [a field]. I acknowledge the applicant would be likely to face a degree of hardship due to economic conditions in the Solomon Islands but these are problems experienced by the population of Solomon Islands generally. I find that any economic hardship the applicant might experience if removed to the Solomon Islands would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.
For the reasons given above, I am not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s.36(2A) of the Act, if he is removed from Australia to the Solomon Islands.
I therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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.
Lilly Mojsin
Member

ANNEXURE A
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.
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.
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 4548

6 November 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Remedies