2315691 (Refugee)

2315691 (Refugee) [2024] AATA 2240 (12 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2315691
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Mark O'Loughlin
DATE:12 March 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 March 2024 at 12:45pm

CATCHWORDS
REFUGEE – protection visa – East Timor – fear of harm from martial arts group – discrimination and riots, and police and military inaction – new claim of fear of harm from neighbour – fire lit to burn rubbish accidentally spread to neighbour’s house – demand for compensation – claims later expanded to four houses, with two children killed or non-fatally burned – house seized and sold, and applicant beaten, stabbed and threatened – lived in hiding for two and a half years before departing – paid third party to prepare application – inconsistent claims and evidence – delay in departing – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), 36(2)(a), (aa), (2A), 65
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 27 September, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. The applicant has applied to the Tribunal for review of that decision.
The applicant applied for the visa on 11 August 2023. The delegate refused to grant the visa on the basis that they were not satisfied of the truth of the applicant’s claims to face harm at the hands of a martial arts group in Timor Leste or his claims the authorities there would not protect him.
The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal on 30 January 2024 via video link to give evidence and present arguments.
The Tribunal was assisted by an interpreter in the Tetum language.
CRITERIA FOR A PROTECTION VISA
The relevant 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). To be eligible for a Protection Visa an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.
There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.
S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations. The applicant does not claim to be such a person and there is no evidence that he is.
The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c).
Therefore, to succeed the applicant must satisfy either:
·s36(2)(a)- the “refugee criterion”, or
·s36(2)(aa)- the “complementary protection” criterion.
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, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
Claims
The applicant set out his claims in the Protection Visa Appliction (PVA) lodged online on 11 August 2023 on pages 11 and 12 of that document. The Tribunal summarises the claims in the PVA in this way:
·The applicant left Timor Leste because he had become involved in a martial arts conflict and his life was threatened.
·The applicant experienced many threats from the martial arts group organisation and from one martial arts group which always creates discrimination and riots.
·The applicant asked for help from the police and the military but they cannot help every individual.
·The applicant was a victim of hidden suffering behind the government.
·The applicant always felt uncomfortable in Timor-Leste because his life is very suffering so he chose to come to Australia because of its support for Human Rights and because it is free from violence.
·If he returns to Timor-Leste he will be killed.
·There is an increasing number of violence and brutalism martial arts groups.
·He is not sure he can be comfortable in East Timor. It was not fair and his life was threatened.
The applicant provided a further statement to the Tribunal when he made the application for this review on 2 October 2023.
In that statement he provided new or expanded claims which might be summarised in this way:
·On 20 August 2020 a fire he had lit behind his house to burn rubbish accidentally spread to his neighbour’s house. The neighbour was not at home.
·The neighbour was very cross when he returned and sought compensation of $45,000.00 US.
·The neighbour said if the applicant did not pay, he would take the applicant to justice and the applicant would be imprisoned.
·The applicant and his family are stressed by this problem, and he wants a visa so he and his family can live in peace and become comfortable.
On 23 November 2023 the applicant provided a further statement. That statement made further claims which might be summarised in this way:
·Four houses were affected by the fire.
·Two children were killed in the fire.
·The victims demanded $45,000.00 US for each house, making a total of $180,000.00 US.
·They demanded payment by the end of 2021.
·The applicant was unable to make the payment and in December the neighbours came and seized his house, which they sold.
·They beat him and punched him and pushed him to the floor and stabbed his arms.
·He avoided them after that by running away and hiding from them.
·The neigbours will not go to the police because they intend to make him suffer and take the benefit of that.
·The applicant does not think he committed a crime because the incident was beyond his expectations.
·He reported the incident to the police without any result.
·He tried to relocate but faced the same harm because the Martial Arts members were ready to harm him everywhere.
·They always beat him if they find him.
·They always bully him.
·They always try to kill him.
·They never gave him a chance to have a significant life as a human being.
·After they found out he had gone to Australia they started to report the case to the police to arrest him.
·The applicant would rather kill himself than return to Timor-Leste.
The applicant further augmented his claims in his evidence to the Tribunal as set out below.
Evidence before the Tribunal
The applicant came to Australia in April 2023 on a visa for seasonal workers.
He had responded to an announcement made by SEFOPE, which is the government of Timor-Leste’s Secretary of State for Training and Employment.
The applicant and his friends had applied to come to Australia for work and they checked regularly to see if they had passed their exam and could get documents to come to Australia.
He said he had an interview in April 2022 and waited for a year before he was able to come to Australia.
He said he went to [City 1] in regional South Australia where he worked for 6 months at which point the company told him it was time to return to Timor.
He said he did not want to do that, so he went to [City 2].
By that time he had found out he had the option of applying for a protection visa and had lodged a PVA.
The applicant told the Tribunal that the PVA had been filled in for him by someone named [Mr A] whom he had met in accommodation where he was staying with other workers.
He said someone from [the agency] that was organising his work and trip to Australia, gave him the number for [Mr A], the person he paid to fill out the PVA.
He said he paid [Mr A] AU$1,000.00 to fill in the form for him. He said he does not know what [Mr A] wrote in the PVA but he did tell him the whole story.
The applicant said that in about August 2020 he was living in his family house which his parents owned. He had been cleaning and lit a fire to burn rubbish one night.
The fire burned down a neighbour’s house and he could not take responsibility for that because the price was too high.
He said 2 houses were burned down and 2 were damaged.
He said the two houses that burned down burned with all of their contents. He said two children were also injured.
He said the children were burned on their backs but had been quickly rescued by some men.
The neighbours demanded USD$40,000.00 for each of the houses that were destroyed and USD$10,000.00 for each of the houses that was damaged.
The applicant said he told [Mr A] all of that when he was filling out the PVA.
He told the Tribunal that when he had applied for the work visa he had promised to return to Timor-Leste when it ran out.
He said it was only when he got to Australia he found out he could apply for a permanent visa and he decided to do that after he had been in Australia for about 4 months.
The applicant told the Tribunal that the neighbours who had been threatening him in Timor-Leste included some members of a martial arts group.
The applicant said the neighbours seized the family house but continued to pursue him because they said it was not enough to compensate them properly.
He said the fire was in about August 2020 and the house was seized later that year. They used threats and weapons to take the house, and the applicant and his family were beaten.
They told the applicant that if they could not get proper compensation, they would take the applicant’s life.
He said he had not paid them any money because they had taken the house.
He said he had gone to the police, but they had not been able to help. He said that was because they live in a village and the police force is not developed.
He also said he moved far away to avoid the danger, but he did not feel safe until he came to Australia.
He said he moved in 2020 to [Municipality] which is about 4 hours’ drive from his home village. They moved because the neighbours had threatened to kill the applicant and his parents if they did not pay.
He said the demands were for compensation of USD$60,000.00 which was for the damage to the houses less the value of the house that had been seized.
He said on the night of the fire they had attacked him and hit him in the head and the stomach with a piece of metal from a chair or something.
He said he and his family had fled on that night and the neighbours had not found them despite looking for them.
The applicant said he was in Timor for about 2 ½ years after the incident before he came to Australia.
The Tribunal asked the applicant why he had not referred to the fire or to threats from his neighbours in his PVA. He said he had told [Mr A] but did not know what [Mr A] had written.
The Tribunal noted that the Department had written to him seeking more information about his application but that he had not responded. He said he did not understand the letter, so he had not done anything about it.
He said he had put a statement in to set out the problems he faced in Timor-Leste. He could not remember what was in it although he said it referred to the accident and to the threats against him and the criminals.
The Tribunal advised that it does not mention threats of violence or criminals.
The Tribunal observed that the statement says it was provided to expand on the claims that had been made in the PVA in light of the criticisms in the delegate’s decision.
The Tribunal noted that there were inconsistencies between that statement and the applicant’s current evidence.
Importantly the amount of compensation sought is different, and the number of houses involved is different.
The applicant said he wanted to clarify the claims a bit and make it even clearer when he got the chance.
He said he forgot to mention the attacks he now claims he suffered.
The Tribunal put it to him that that is a surprising omission. The applicant said he relies on the Tribunal’s conscience and assured the Tribunal that he is now telling the truth.
He said he was confused by the English and that is why that statement of October 2023 does not mention those important issues.
The applicant said his assertion that the neighbour would have him imprisoned is not a fear he held. He could not explain why it is in the statement. He asserted the neighbours do not want to have him imprisoned, they want to take his life.
He said he did not mention the threat to his life in the statement partly because he forgot and partly due to problems with English.
The Tribunal finds this answer to be unconvincing. The statement was prepared with the express intention of clarifying his claims and does not refer to alleged threats to the applicant’s life, to physical attacks on the applicant or to the seizure of the applicant’s family home.
Further it only refers to the fire affecting one other house rather than four as the applicant now says. It does not refer to the injured children about whom the applicant has now given evidence.
The Tribunal referred to a further statement that had been provided to the Tribunal on 23 November 2023.
The applicant told the Tribunal that he had prepared that statement using Google Translate and the help of friends. Again, it was intended to clarify the applicant’s story.
By the time he prepared it he had moved to [City 2] in regional Victoria.
The Tribunal noted that the statement claims two children were killed in the fire. The applicant repeated his earlier evidence that they were burned but did not die.
The Tribunal asked why the statement says they were killed. The applicant said because he did not find out they had survived until later. He said his parents told him they had survived. He said they had told him that a long time ago, but after he had left Timor-Leste.
He said he believed the children had died because he saw them on the ground on the night of the fire, so he did not know they had not died.
The Tribunal noted the applicant claimed in the statement that the compensation demanded by the neighbours was USD$180,000.00 and that it was calculated as 4 houses at $45,000.00 each.
The applicant agreed.
The Tribunal asked why he had said that when his evidence is now that two of the claims were only for $10,000.00. The applicant apologised but did not offer any further explanation.
The Tribunal asked why, when he gave evidence about the demands, he said the total being demanded was only $60,000.00, significantly less than was put in the statement of clarification in November 2023.
The applicant agreed that the amounts were different and said he did not know how to resolve it.
Country Information – Marital Arts Groups
The Tribunal has considered generally available information about martial arts groups (sometimes referred to as ‘martial and ritual arts groups’) in Timor-Leste.
One commentator says:
‘The common ground for martial arts groups is the practice of a particular form of sports, such as karate,pencak silat, judo, or taekwondo. They have complex histories dating aback to the Indonesian occupation, were partly involved in the liberation struggle, and are politically and personally affiliated, cerating a complex, nationwide network of alliances.’[1]
[1] ‘Security, Violence and Outlawed Martial Arts Groups in Timor-Leste’, Pawelz J, May 2015
A report on the involvement of Martial and Ritual Arts Groups (MAGs) in the 2023 Timorese election noted that MAGs are ‘…mass membership organisations which play important roles in Timorese society and political culture.”[2]
[2] Fundasaun Hahein ‘Politicisation of Martial Arts Groups: implications for national security and the 2023 Parliamentary Election’ April 17 2023.
The same report goes on to describe MAGs as “…popular, combat-oriented organisations with complex relations with civil society, state institutions and resistance history, MAGs play a unique role in social and political life in Timor-Leste.’
The same report goes on to observe ‘… MAGs actively promote group loyalties and some even use blood oaths, while fiercely protecting their members from attacks by other groups.’
On balance it appears that MAGs are well known in Timor Leste and are perceived as being associated with violence and increasing political influence.
Claims
The claims made by the applicant in his evidence before the Tribunal differ to those made in the clarifying statements provided prior to the hearing.
The applicant claims he accidentally lit a fire that destroyed two houses and damaged two others in August 2020.
He claims two children were injured in the same fire.
He claims some of the affected neighbours were members of a ‘martial arts group’.
He claims he was attacked and beaten with a metal rod by or bar by his neighbours on the night of the fire.
He claims he was threatened with death by his neighbours on the night of the fire.
He claims that he and his family fled and hid in a distant region.
He claims that the neighbours seized the family home in December 2020 and sold it.
He now claims that they demanded USD$60,000.00 compensation for the damage to their property.
He claims he was stabbed in the legs, knees, stomach, and the back of his head and still bears the scars. The Tribunal did not require the applicant to show his scars and accepts he has scars as he describes. Their existence supports but does not prove the applicant’s evidence about being stabbed.
Findings
The Tribunal has regard to the inconsistencies in the three versions of events that the applicant has provided.
The applicant claims the PVA was filled in by a paid third party and that he does not know what it says.
However, in his evidence he confirmed that the statements of October and November 2023 were provided for the express purpose of clarifying his version of events.
The information left out of the statements, the inconsistencies between those statements and the further inconsistencies between the statements and the applicant’s evidence before the Tribunal relate to important aspects of the applicant’s claims.
Those matters include (but are not limited to) the number of houses he says were damaged, the amount of compensation the neighbours demanded from him, the involvement of a martial arts group, whether or not the applicant or the neighbours reported the incident to the police, the seizure and sale of his father’s house and property by the neighbours, and whether two children were killed in the fire.
The applicant could not provide a satisfactory explanation for the gaps and inconsistencies in the statements or why there were inconsistencies with his evidence to the Tribunal.
The Tribunal is not satisfied that the applicant’s evidence is credible.
The Tribunal is not satisfied the applicant’s claims to have accidentally burned his neighbours’ houses are true.
The Tribunal is not satisfied the applicant was the target of an MAG in his home village as he says.
The Tribunal is not satisfied the applicant moved away from his village because he was unsafe.

100. The Tribunal is not satisfied the applicant was unsafe in the place he had been living unmolested for about 2 ½ years before he came to Australia.
101. The Tribunal is not satisfied the applicant fled Timor-Leste for his own safety.
102. The Tribunal is not satisfied the applicant faces harm of any sort if he is returned to Timor-Leste.

S36(2)(a) - REFUGEE CRITERION
103. 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. This is called the “refugee criterion”.
104. S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.
105. The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is of East Timorese nationality. Further, the Tribunal is satisfied that the applicant is outside East Timor, his country of nationality.
106. The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in East Timor, which is the next part of the definition of “refugee” at 5H(1)(a).
107. S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must all be satisfied to come within the definition. They provide respectively that the applicant will come within the definition if:
·The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and
·There is a real chance that, if the applicant returned to East Timor, he would be persecuted for one or more of the reasons mentioned in paragraph (a), and
·The real chance of persecution relates to all areas of East Timor.

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.

109. The applicant claims to fear being persecuted as a victim of a group of neighbours, including a martial arts group, taking the law into their own hands after he caused an accidental fire.
110. Taken at its broadest the Tribunal is satisfied that the applicant claims to fear persecution as a member of a particular social group, which might be ‘victims of martial arts groups’ or ‘victims of vigilantes’. Without making a finding as to the reasonableness of those fears, the Tribunal finds S5J(1)(a) is met.
111. S5J(1)(b) requires that the Tribunal be satisfied there is a real chance that, if the applicant returned to East Timor, he would be persecuted for one of the refugee reasons from S5J(1)(a).
112. The term “persecution” is not defined in the Act, but s5J(4)(b) specifies that persecution must involve serious harm to the person.
113. The Tribunal has found that the applicant does not face harm of any sort if he is returned to East Timor. It follows that the Tribunal is not satisfied there is a real chance he faces ‘serious harm’.
114. The Tribunal is therefore not satisfied the applicant has a ‘well-founded fear of persecution’ if he is removed to East Timor.
Conclusion re Refugee Criterion
115. The applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).
S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION

Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), he may nevertheless be entitled to the grant of the visa if he meets s 36(2)(aa) (‘the complementary protection criterion’).

117. To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of him being removed to East Timor there is a real risk that he will suffer significant harm.
118. The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
119. S36(2A) provides as follows:
(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.

120. The Tribunal has considered whether the applicant faces a real chance of serious harm when considering the refugee criterion. The Tribunal’s findings include findings that his claims are not made out and he does not face harm of any kind.
121. It follows that the Tribunal is not satisfied the applicant faces ‘significant harm’ for the purposes of S36(2A).
122. Therefore the applicant does not come within s36(2)(aa) and does not meet the complementary protection criterion.
Conclusions
123. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) 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.

126. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
127. The Tribunal affirms the decision not to grant the applicant a protection visa.
Mark O’Loughlin
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.
…

[2024] AATA 2240

12 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction