2316112 (Refugee)

2316112 (Refugee) [2024] AATA 2370 (17 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2316112
COUNTRY OF REFERENCE:                   East Timor
MEMBER:Mark O'Loughlin
DATE:17 April 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 April 2024 at 4:29pm

CATCHWORDS
REFUGEE – Protection Visa – East Timor – illegal moneylenders – fears his creditors – evidence was inconsistent and unconvincing – amended his oral evidence to match what was in the PVA – not satisfied the applicant has a well-founded fear of serious harm – credibility concerns – 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 6 October 2023, 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 27 August 2023. The delegate refused to grant the visa on the basis that the applicant could avoid relevant harm by engaging state protection against illegal moneylenders and is not therefore owed protection obligations by Australia.
The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal on 15 February 2024 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, 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.
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 Application (PVA) lodged online on 27 August 2023 at his answers on pages 10,11 and 12 of that document.
The claims in the PVA are essentially that the applicant owes money to someone at a very high interest rate. He is in default and if he returns to Timor Leste without being able to repay the loan, he faces a death threat. There will be no way of repaying the loan if he is returned to Timor Leste because there are no jobs there and so far in Australia he has only been able to earn enough to meet the interest payments.
Although the PVA states that the applicant did not receive help from an interpreter or anyone else in completing the form, in his evidence to the Tribunal the applicant said the form had been completed for him by a [person] with whom he had a mutual acquaintance. He expanded on his claims in his evidence.
Summary of Claims as Clarified in Oral Evidence
In his evidence the applicant said his reasons for wanting to stay in Australia are:
·That a creditor will kill him or assault him as punishment for failure to pay a debt if he returns to Timor Leste.
·That he will be unable to find work in Timor Leste and will not be able to repay his creditor who will kill him or assault him.
·That he will be unable to find work in Timor Leste and will not be able to support his parents and siblings.
Background
The applicant was born on [date] and is [age] years old at the time of this decision.
He came from Timor Leste on a short-term seasonal work visa on [date] May 2022.
Documentary Evidence
The applicant provided the Tribunal with a copy of the departmental decision of 6 October 2023.
He also provided a copy of the relevant pages of his passport, and after the hearing he sent the Tribunal two screenshots of a transfer of funds he made to his sister.
Evidence before the Tribunal
The applicant told the Tribunal there are 3 reasons he is seeking a visa.
The first reason he wants a visa is that he fears his creditors.
He said he had borrowed money to start a business, but COVID hurt the business and the person or persons from whom he had taken the loan demanded monthly instalments and then seized some of his goods, making the business even less viable. They took his photocopier and computer.
The business was a [shop].
The Tribunal asked the identity of his creditors. He said he had borrowed the money from a friend of his named [Mr A] who is a [occupation] in Timor.
He said he borrowed more than $5,000.00 from [Mr A]. When pressed on how much he had borrowed, after some delay he said $5,450.00.
As long as the debt is unpaid he is safe in Australia but would not be safe in Timor Leste.
The second reason he wants a visa is because he wants to stay longer and save more money.
He said when he first got to Australia he was picking [fruit] which was heavy work and after 3 or 4 months he had only managed to save $3,000.00. He said the temporary work visa had been for 9 months but that the work had run out after 7 months and he was going to be sent home too early.
He said he found out that there is a lot of work to do and that if a person leaves the system they can find work in other places, which is what he decided to do.
He said he had got a job [on a farm near Adelaide].
He said that he had to do this work for cash because it is outside the terms of the visa he was on, but that his bridging visa would take effect shortly after the hearing and he would be entitled to seek formal work and be paid officially.
He said that because he does not have relevant working rights he has to work for a lower rate which has made it difficult to save money. He said he is paid about $600.00 cash per week for that work.
He said he wants to earn enough to repay his loan and avoid the threats of his creditor.
The third reason he wants a visa is because there is no work in Timor and he needs to be able to support his family as he has younger siblings in school and his parents are not able to earn much.
He said since he has been in Australia, he has sent AUD$2,000.00 back to his family.
The Tribunal asked about the loan he took from his [friend]. The applicant said the interest was agreed at $200.00 per month but that they have agreed to wait, as long as the applicant has been out of work.
Noting that the PVA says the agreed interest rate was $250.00 the Tribunal asked what he had told [Mr B], the person who arranged for the PVA to be completed.
After some discussion the applicant agreed he had told [Mr B] that the interest repayment was $250.00. He said in fact the repayment was only $200.00 because sometimes that was all he could afford to pay.
He also said the repayments were $450.00 but he wanted cigarette money so he only paid $100.00.
The applicant’s evidence on this topic was inconsistent and unconvincing.
He said that he had been threatened by his creditors. He said they made threats then they came to his business and seized his property.
He said he diverted them by telling them he was leaving to work in Australia and he would be able to get the money.
Having referred to his creditors in the plural, the Tribunal clarified that he had borrowed the money from one [Mr A]. The applicant confirmed that and said it was [Mr A] who had threatened him.
The applicant confirmed his evidence he had agreed to pay $250.00 a month in interest on a loan of $5,450.00.
He agreed that is over 50% per annum.
The Tribunal asked the applicant to describe the [Mr A]’s threat. He said the [Mr A] had said “if you don’t pay my money I will do something to you”. It was at that point the applicant had told the [Mr A] he was coming to Australia and expected to be able to make the payment. The applicant did not say anything about a death threat or a threat to beat the applicant up.
The Tribunal noted that the PVA says a death threat had been made against the applicant. The applicant then said he had been threatened with death.
On being asked he was unable to explain why he had not told the Tribunal about the death threat without being prompted to do so.
The applicant said he had not mentioned the death threat in his evidence to the Tribunal because he was not sure what had been written in the PVA because his English is not very good.
The applicant insisted that when he was providing his instructions to [Mr B] who filled in the PVA he had told him about the death threat.
The Tribunal was not convinced by the applicant’s explanation for not mentioning the death threat to the Tribunal until the content of the PVA was put to him.
The Tribunal advised the applicant that there is information before it that would be the reason or part of the reason for affirming the decision of the delegate of the Department.
The Tribunal told the applicant there are other applications that have come before the Tribunal that have claims that are exactly the same as the claims in his form.
The applicant was told that is relevant because it suggests the applicant did not prepare the visa application.
Having considered the evidence the applicant has given in this matter the Tribunal accepts the applicant’s evidence that he did not prepare the PVA. He said he does not know what was put in the PVA and that it only broadly follows his story. The fact that there are other claims before the Tribunal in the same terms as the applicant’s claims is not inconsistent with the applicant’s evidence.
However, the applicant did not claim in his oral evidence to have received a death threat until after the Tribunal advised him that it was one of the claims in the PVA.
The applicant appears to have amended his oral evidence to match what was in the PVA after he had been advised of its contents.
The Tribunal then asked the applicant to describe the threats [Mr A] made against him. The applicant said he was very late in his payments and [Mr A] started to hate him. He said [Mr A] threatened to beat him which means he will kill him.
The applicant then gave evidence that [Mr A] said “if you don’t pay I will beat you up, I will kill you.”. The applicant’s evidence about what the [Mr A] had said was inconsistent in an important particular.
The applicant said he believes [Mr A] would beat hm up. The Tribunal put to him that it is unlikely a [occupation] would beat someone up over a debt.
The applicant explained [Mr A] is both a [occupation] and a businessman and that he lends money to many people.
The applicant said he has threatened to kill other people who have not repaid him, but he has not carried out the threat.
The applicant said he had paid AUD$1,000.00 to [Mr A] since he had been in Australia.
He said he had paid AUD$250.00 per month for 6 months but had not paid any more. The Tribunal noted that that is AUD$1,500.00. The applicant then said he had only sent AUD$1,000.00.
He then said he had paid AUD$2,000.00 to his sister on the understanding she would pay [Mr A] AUD$1,000.00 and the rest would be put towards the family’s expenses.
He said he paid that money to his sister who then gave it to [Mr A]. He said he has a bank account in Australia, but he uses a service to remit the money to his sister. He said he would provide evidence of the payment after the hearing.
On 21 February the applicant provided 2 screenshots of a remittance he had made to [Mr A] on 3 Jan 2024 in the sum of AUD$1,607.99 at an exchange rate that converted that sum to US$1,050.40 for collection by the recipient.
The Tribunal accepts that the applicant made that transfer and that [Mr A] is his sister.
The Tribunal observes that the amount of the transfer does not accord with his original evidence that he had only transferred AUD$1,000.00, or his later evidence that he transferred AUD$2,000.00 for division between [Mr A] and his family.
The Tribunal is not satisfied the applicant had arranged with his family to pay any of the money he transferred to [Mr A].
The applicant’s evidence about the loan is unconvincing. The applicant’s evidence was inconsistent about the amount of the loan which he first said was $5,000.00 and then said was $5,450.00.
The applicant’s evidence about the amount he was required to repay was inconsistent. He first said he had agreed to repay $200.00 per month in interest.
He then told the Tribunal he had told the person who filled out the PVA on his behalf that the repayments were $250.00 per month.
The Tribunal finds the applicant’s evidence about repayment of the loan and payment of interest was inconsistent.
The Tribunal does not accept the applicant’s evidence about the agreement to pay interest.
The Tribunal is not satisfied that the applicant took a loan from [Mr A] as he claims.
The Tribunal is not satisfied that [Mr A] threatened to beat the applicant up or kill him as the applicant claims.
S36(2)(a) - REFUGEE CRITERION
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”.
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.
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.
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).
S5J defines “well-founded fear of persecution”. S5J(1)(a)(b) and (c) establish prerequisites that must 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.
Broadly, the applicant’s claims arise from two factors.
The first is that he fears harm at the hands of a creditor because he borrowed money and has not been able to repay it. He says if he stays in Australia his creditor will not be able to reach him and he will be able to earn enough money to pay the debt. If he returns to Timor Leste his creditor will be able to harm him and he will be unable to earn enough money to avoid that.
The second is that he fears he will be unable to earn enough money to support his family.
Loan
The applicant’s evidence about the loan he said he took from a friend, [Mr A], was inconsistent and unconvincing.
His evidence about the amount of the loan was inconsistent.
His evidence about the rate at which he agreed to make repayments or interest payments was inconsistent.
The Tribunal is not satisfied that the applicant took out a loan as he claims.
The Tribunal is not satisfied that [Mr A] will kill the applicant or beat him up for a debt related to the loan as he claims.
The Tribunal is not satisfied the applicant fears being persecuted due to his inability to repay a loan as he claims. The applicant does not satisfy S5J(1)(a) because of a loan.
Further, the Tribunal is not satisfied there is a real chance that if the applicant is returned to East Timor he would be persecuted for a relevant reason. Therefore the applicant does not satisfy S5J(1) (b) or (c) because of a loan.
The Tribunal is not satisfied the applicant has a well-founded fear of persecution as contemplated by S5H by reason of a loan, and does not therefore come within the definition of ‘refugee’.
Economic Circumstances
The applicant also claims that his earnings in Timor Leste are not sufficient for him to adequately support his family there because he cannot secure a job that pays well enough.
The Tribunal must examine this claim of potential economic hardship to determine whether it gives rise to a relevant “well-founded fear of persecution” and brings the applicant within the definition of “refugee” in s5H of the act.
The Tribunal will first consider what is meant by “persecution”.
The term is not defined in the Act, but s5J(4)(b) specifies that persecution must involve serious harm to the person and s5J(4)(c) specifies that persecution must involve systematic and discriminatory conduct.
“Serious harm” is not defined, but some examples are given at S5J(5). Those examples involve threats to life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the person’s capacity to subsist, and denial of capacity to earn a livelihood of any kind where the denial threatens the person’s capacity to subsist.

100. The applicant does not claim that the general economic situation in Timor Leste involves threats to his life or liberty, significant physical harassment, or significant physical ill-treatment.
101. He does claim he will suffer economic hardship in that he is unlikely to be able to earn enough money in Timor Leste to be able to continue to support his parents and pay for his siblings schooling.
102. The applicant does not suggest he would be unable to earn a livelihood of any kind or that his capacity to subsist would be threatened.
103. The Tribunal is not satisfied the applicant’s economic circumstances in Timor Leste would involve serious harm to the applicant as contemplated by S5J(4)(b).
104. His economic circumstances in Timor Leste would not, therefore, give rise to a well-founded fear of persecution as contemplated in s5H and the applicant is not a refugee as defined..
Conclusion re Refugee Criterion
105. 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’).

107. 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 Timor Leste there is a real risk that he will suffer significant harm.
108. The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).
109. 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.

110. S5(1) defines “cruel or inhuman treatment or punishment” as follows:
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 or the Covenant; or
(d)   arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

111. S5(1) defines “degrading treatment or punishment as follows:
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.

112. The Tribunal has considered the applicant’s claims that he is threatened with death at the hands of a creditor because of a loan he said he took out when it considered that claim under the refugee criterion.
113. The Tribunal was not satisfied the applicant took out a loan as claimed.
114. For the same reasons as set out in reaching that conclusion when considering the refugee criterion, the Tribunal is not satisfied the applicant will suffer significant harm as defined by reason of a loan he took out in Timor Leste.
115. The applicant also claims to face harm by reason of the general economic circumstances in Timor Leste.
116. He does not claim he will suffer significant harm as defined above. He does not claim he will be killed or tortured by reason of the economic circumstances, nor does he suggest he will be subjected to an act or omission that would result in either cruel and unusual or degrading treatment or punishment.
117. The Tribunal is not satisfied there are reasonable grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Timor Lest there is a real risk he will suffer significant harm.
118. Therefore the Tribunal is not satisfied the applicant comes within S36(2)(aa).
Conclusions
119. 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.

122. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
123. 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 2370

17 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Appeal