2315015 (Refugee)

2315015 (Refugee) [2023] AATA 4816 (15 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2315015
COUNTRY OF REFERENCE:                   Timor-Leste
MEMBER:Member Nathan Goetz
DATE:15 December 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 December 2023 at 2:54pm
CATCHWORDS
REFUGEE – protection visa – East Timor – crime, gangs and economic conditions – pressured by gang to take blame for murder instead of gang member – country information – application completed by acquaintance without applicant’s knowledge of contents – arrived on working visa, now ceased – intention to get bridging visa and work before departing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant a protection visa.
The applicant was not represented in the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.
BACKGROUND
Previous migration history
On 10 March 2022 the applicant was offshore and applied for a temporary work visa. On 15 March 2022 the applicant was granted the visa. [In] March 2022 the applicant arrived in Australia holding this visa. On 25 December 2022 that visa ceased.
On 19 October 2022 the applicant applied for a protection visa. On 27 June 2023 a delegate determined that the visa application was invalid.
Current visa application
On 9 August 2023 the applicant applied for the protection visa that is the subject of this decision record. On 29 August 2023 the delegate refused to grant the applicant the protection visa on the basis that the applicant did not satisfy s 36(2)(a) or (aa) of the Act.
On 22 September 2023 the applicant applied to the Tribunal for review of the decision.
On 30 November 2023 the Tribunal wrote to the applicant under s 425(1) of the Act and invited the applicant to appear at a Tribunal hearing scheduled for 9:30am on 15 December 2023.
On 15 December 2023 the applicant appeared at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal considered all the evidence in the visa application and the review application, including the applicant’s oral evidence. At the Tribunal hearing, the Tribunal identified the criteria for the grant of the protection visa.
As will become apparent in this decision record, the applicant did not claim in his oral evidence to meet any of the criteria for the grant of the visa.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (DHA), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
There is no DFAT Report on Timor-Leste.
Identity, family and country of reference
In the protection visa application form, the applicant declared that his name is [the applicant], a male citizen of Timor-Leste who was born on [date] in [Town 1], Timor-Leste. He did not claim to hold any citizenship or nationality of any other country and did not claim to have the right to enter and reside in any country other than Timor-Leste. He identified his ethnicity as Timorese and his religion as Catholic.
In support of his identity and citizenship, the applicant provided a copy of the first page of a passport issued under the authority of Timor-Leste which was issued in the applicant’s own name on [in] 2019.
The applicant identified that he was ‘never married.’ He did not include any other person in the protection visa application and did not identify that there were any members of the same family unit who were not included in the protection visa application form. At the Tribunal hearing, he confirmed he had no family in Australia.
In the protection visa application form, it was identified that the applciant was raising his own protection claims. He did not claim to meet the requirements for the grant of the protection visa on the basis of membership of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Preparation of the visa application form
In the protection visa application form, the applicant declared he received no assistance from an interpreter to complete the form and declared that he received no assistance to complete the protection visa application. The applicant declared that he could speak, read and write Timorese and did not identify that he could speak, read or write English.
In a letter the applicant provided to the Tribunal at the time he applied for review of the decision, which was purportedly from the applicant, he declared that he looked for someone to help type the claims for protection. He spoke to a colleague whose English was good and that person helped the applicant typed the letter in readable English and in an understandable manner so that it could be uploaded to the applicant’s Immi Account.
At the Tribunal hearing, the applicant told the Tribunal that he was unaware of the letter that was supposedly written by him and provided to the Tribunal.
Concerning the application for the protection visa, the applicant told the Tribunal that he held the work visa until 22 December 2022 and had worked for 9 months in Australia but had not done enough work to earn enough money to return to Timor-Leste, so applied for a bridging visa to he could work.
The applicant told the Tribunal that the person assisting him told him to apply for a protection visa because it would allow the applicant to remain in Australia to work on a bridging visa. The applicant told the Tribunal that his plan was to work in Australia to he could get enough money to build a house in Timor-Leste and return to that country. He did not know what was contained in the protection visa application form.
Reasons for leaving Timor-Leste and unwillingness to return to that country
In the protection visa application form, the applicant detailed that Timor-Leste was a country where the crime rate is dramatically increasing ‘every single day.’ He claimed that thousands of people like the applicant get involved with ‘bad gangsters’ by being at the wrong spot on the wrong day.
He claimed that he was passing by the Dili market and some gangs were present. They started fighting. The applicant was thought to be part of the gang, and they ‘literally held my arm and dragged me in their circle.’ The applicant wrote that he was ‘trying to explain myself but no body heard me.’ He claimed the gang had weapons and the applicant was scared. He got beaten up and fainted. He ended up in hospital and was handcuffed to a bed because it was thought the applicant was part of the gang. He explained his story with some ‘references’ from the Dili market. With this proof, no ‘case’ was put against the applicant. The applicant subsequently found out that someone was murdered at the fight. Police trusted the applicant and did not put a charge on him.
After a week or so, the gang contacted the applicant to take the blame for the murder so their friend could be free. The applicant was offered ‘a big fortune’ to take the blame. The applicant refused the offer and ‘ever since the gang have been after him to kill him.’ It was suggested that he had been caught ‘a number of times’ and ‘beaten up’ but the police did not do anything about it because there was ‘no proof.’ It was suggested that this resulted in the applicant’s family ‘leaving him’ because it was ‘not safe for them to live with me anymore.’ It was suggested that a ‘gang of Hercules’ was behind this.
The applicant claimed that he tried to move to another part of Timor-Leste after the harm. He wrote that it was in ‘other parts of Timor-Leste’ but ‘every time they find me.’ The applicant claimed that he could nor relocate within Timor-Leste upon his return to an area where he would not be harmed because he had tried to relocate a number of times and was found every time. He suggested that if he returned and tried to relocate elsewhere within Timor-Leste and was found, it would worsen the situation.
If he was to return to Timor-Leste, he believed he will be killed. He did not believe that the authorities in Timor-Leste could and would protect him because if they could, they would have done so. It was suggested that the authorities were scared of the gangs.
When the applicant applied to the Tribunal for review of the decision, he provided a submission to the Tribunal indicated that he had other material that he wished the delegate to consider, but he did not have an opportunity to do so because the decision to refuse to grant the applicant the protection visa was made quickly.
·     He provided information about the gangster ‘Hercules’ which was copied from a Wikipedia page ‘Hercules (gangster).’
·     He provided information about journalists being attacked outside a Court in West Jakarta, which was copied from an article from 2 April 2019 published online by the International Federation of Journalists.
·     He provided information about the General Chairperson of the United Indonesian People’s Movement (GRIB) Jakarta Jaya, Rosario de Marshall alias Hercules, which was copied from an article dated 4 June 2023 published online by IndoLeft – What’s Happening Inside Indonesia.
·     He provided information about the chief of the Timor-Leste Defence Forces, which was copied from an article dated 15 January 2013 published online by the Timor-Leste Law and Justice Bulletin.
·     He provided information about the ‘long running relationship between former Jakarta gangster Hercules,’ which was copied from an article dated 4 July 2014 published online by the New Mandala.
The applicant wrote that Hercules was involved in many attacks but gets away with due to political links. The applicant claimed that people like him are ‘squeezed in the middle’ and that the applicant could be lucky once or twice, but not all the time.
The delegate decision record provided the information relevant to the claims raised in the protection visa application form. Having considered the source material referred to in the delegate decision record, the Tribunal is satisfied that it is a fair summary of the present situation in Timor-Leste relevant to the protection claims raised in the form. The decision record provided the following:
The Constitution of the Democratic Republic of Timor-Leste 2002 governs the police and security forces. In s 147 it states that the police shall defend the democratic legality and guarantee the internal security of the citizens, and shall be strictly non-partisan, prevention of crime shall be undertaken with due respect for human rights and that law shall determine the rules and regulations for the police and other security forces.
According to the United States Department of State’s (USDOS) report on human rights practices for Timor-Leste published in 2023, internal security is overseen by the PNTL, who report to the Ministry of Interior. The USDOS report also noted:
‘There were credible reports that members of the security forces committed some abuses. Significant human rights issues included credible reports of: government corruption; lack of investigation and accountability for gender-based violence; violence against persons with disabilities; and the worst forms of child labor. The government took steps to prosecute members and officials of the security services who used excessive force or engaged in corruption; however, public perceptions of impunity persisted.’
The law provides that judges shall perform their duties “independently and impartially without improper influence” and requires public prosecutors to discharge their duties impartially. Many legal-sector observers expressed concern about the independence of some judicial organs in politically sensitive cases, a severe shortage of qualified personnel, and the complex legal regime influenced by legacies of Portuguese, Indonesian, and UN administration and various other international norms. An additional problem is that all laws and many trial proceedings and court documents are in Portuguese, a language spoken by approximately 10 percent of the population. Nonetheless, observers noted that citizens generally enjoyed a fair, although not always expeditious, trial and that the judiciary was largely independent.’
The USDOS report stated of Timor-Leste, for the year 2022, that the ‘law prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court. The government generally observed these prohibitions’13 and ‘the law provides for the right to a fair, timely, and public trial, and an independent judiciary generally enforced this right, except for timeliness.’
The recent US Department of State’s Overseas Security Advisory Council (OSAC) security report on Timor-Leste provides the following assessment of the 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 Defense. 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 capacity is limited but improving with assistance from partners in the international community, including the U.S. 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.’
A November 2021-January 2022 Asia Foundation nationwide Timor-Leste Safety, Security, and Justice Perceptions Survey of an unstated number of ‘members of the general public and community leaders’16 reported of ‘Crime and Dispute’:
‘Half of all general public respondents had experienced at least one crime or dispute in the previous year. This figure was likely much higher than in previous years due to the inclusion of a broader range of crime/dispute response options. Divorce and abandonment [1. Abandonment in the Timor-Leste context often refers to men leaving their wife/partner and/or children without material support. It includes paternity cases where a pregnant woman is seeking material support from someone who promised to marry her; as well as in sexual assault cases resulting in pregnancy where the perpetrator refuses to pay maintenance.] were the most common crime/disputes experienced, followed by crop destruction by animals and land disputes.
The inclusion of a broader range of crimes/disputes resulted in greater consistency (than in previous years) between what respondents think they would do if affected by a hypothetical crime/dispute and what respondents did do when affected by actual crimes/disputes. In 2022, respondents who had actual experiences of crimes/disputes predominantly first reported to community leaders, consistent with what they thought they would do if they experienced a hypothetical crime/dispute.
Most respondents who experience 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 reported 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 issue 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 the most appropriate initial mechanism to report crimes and disputes. Proximity plays the most decisive role in determining from whom people seek assistance.
Land disputes were the matters most commonly referred to others by community leaders and amongst the matters they reported finding most difficult to deal with. Community leader respondents also reported finding it difficult to deal with physical attacks resulting in death and domestic violence (which they do not believe they should deal with) and which they rightly perceive as police matters. Given that members of the general public continue first to take domestic violence to community leaders to resolve, ongoing public education about how to address domestic violence is essential. It is a positive finding that people believe that all people are treated equally by police and community leaders, although this appears to be less the case for members of the Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Asexual (LGBTQIA+) community.
Community leader respondents rely heavily upon their knowledge of community traditions and customs, rather than Timorese law, to resolve crimes/disputes brought to them, typically using mediation, which assumes a range of forms. Despite the prominent role of community leaders in dispute resolution, however, addressing crimes and disputes is a collaborative endeavour (consistent with respondents’ understanding of community policing) involving partnerships with both state and non-state actors, most importantly police but also increasingly with non-government and religious organizations, as well as veterans and martial arts groups.’
Despite the contents of the protection visa application form, the delegate decision recording addressing those claims, and the letter provided to the Tribunal, the applicant did not claim that he feared harm upon return to Timor-Leste at the Tribunal hearing.
The applicant told the Tribunal that the purpose of the protection visa application was for him to be able to get a bridging visa to work in Australia and return to Timor-Leste. He said that Timor-Leste had economic problems and that he did not want to return to that country until he had some money so he could afford to build a house there. He said that the economy makes it difficult to live there and that this can lead to conflict. He did not claim that he would be persecuted because of his race, religion, nationality, membership of a particular social group or political opinion in Timor-Leste and did not claim that the economic conditions, and any associated conditions in Timor-Leste meant that he would be subjected to the death penalty, arbitrarily deprived of his life, tortured, or subjected to cruel, inhuman or degrading treatment or punishment. The applicant said that the purpose of the protection visa, which he appeared to know very little about, was to allow him to work in Australia until his return to Timor-Leste.
FINDINGS AND REASONS
The issue in this case is whether the applicant is a ‘refugee’ or meets the requirements for ‘complementary protection’ or a member of the same family unit as a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’
If the Tribunal is satisfied that the applicant meets the criteria for the protection visa, the correct of preferable decision is to set aside the decision of the delegate dated 31 August refusing to grant the applicant the protection visa and remit the visa application back to the delegate for reconsideration with a permissible direction concerning the criteria the Tribunal has found the applicant satisfies.
If the Tribunal is not satisfied that the applicant meets the criteria for the protection visa, the correct of preferable decision is to affirm the decision of the delegate decision refusing to grant the applicant the protection visa.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal is satisfied as to the applicant’s identity, citizenship, and lack of a right to enter and reside in another country. The Tribunal is satisfied about the applicant’s identity and citizenship based on the production of the applicant’s Timor-Leste passport and is satisfied that the applicant does not have the right to enter and reside in another country because there is no evidence to undermine that claim.
Therefore, the country of reference for the purpose of the protection visa application assessment is Timor-Leste.
The Tribunal is not satisfied that the applicant is a member of the same family group as a person who satisfies s 36(2)(a) or (aa) of the Act based on the applicant did not claim to satisfy this criterion. There is no evidence to the contrary.
Concerning the protection claims raised in the protection visa application form, the Tribunal is not satisfied that the applicant faces any risk of harm from ‘gang members’ in Timor-Leste because the Tribunal does not accept that the applicant was present for a fight where ‘gang members’ were present or that any of the claims arising from the presence of the applicant at the claimed fight. The Tribunal is not satisfied that those claims are truthful because at the Tribunal hearing the applicant did not claim that any of this occurred. In fact, the applicant had no idea about what was contained in the protection visa application form, or the letter that was submitted to the Tribunal. The Tribunal is satisfied that the person who lodged the protection visa application on behalf of the applicant fabricated these claims for protection.
The Tribunal is satisfied that the reason the protection visa application was lodged was solely for the purpose of being granted a bridging visa that would permit the applicant to work in Australia until his protection visa application was finally determined.
The Tribunal has considered the applicant’s oral evidence about the poor economic situation in Timor-Leste and his claim that a poor economic situation can lead to conflict. However, the applicant did not claim that the economic situation in Timor-Leste would result in the applicant facing a real chance of serious harm due to his race, religion, nationality, membership of a particular social group, or political opinion. Similarly, the applicant did not claim that the economic situation in Timor-Leste would result in a real risk the applicant would suffer significant harm in Timor-Leste.
Based on the absence of the applicant making those claims, the Tribunal is not satisfied that there is either a real chance or a real risk the applicant will suffer harm in Timor-Leste because of the economic situation in that country.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Timor-Leste due to his race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person to whom Australia has protection obligations under s 36(2)(a) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for belieiving that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Timor-Leste, there is a real risk the applicant will suffer significant harm as defined in the Act.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz

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

[2023] AATA 4816

15 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Standing

Statutory Construction