2316684 (Refugee)

2316684 (Refugee) [2024] AATA 968 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  2316684
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Kate Chapple
DATE:8 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 January 2024 at 9:20am
CATCHWORDS
REFUGEE – protection visa – Tonga – non-appearance before the Tribunal – climate change and natural disasters – volcanic eruption and tsunami – United Nations Human Rights Committee determination – Teitiota v New Zealand – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 426A, 430
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIMIA v Al Masri [2003] FCAFC 70
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.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

The following statement attached to applicant’s protection visa application lodged 25 August 2023 (spelling and grammatical errors not corrected):
Persecution does happen all over the world in Europe Middle East South Africa not in the south pacific countries.
Climate change and mother natures does worsen regularly all year round.
Our people including my family and I are still struggling big times to come to terms with these horrific disasters that destroyed our lively hoods belongings house crops and list goes on.
Did we receive any financial aids from other countries? Did we received any other foam of contribution for rebuilding the damages in our little, tiny island of Tonga.
Yes, we did received millions and millions of dollars from United Nations and other foreign countries such as Australia and New Zealand like I gave already mentioned above.
It is an unfortunate situation after all the above donations only very little has been done.
We are very concern about our future because of our corrupt Tongan governments doesn't really care about our people who are suffers.
Displacing our people is so ugly and inhuman as our Tongan Government continue to ignore our people suffering in frustration.
However our people clearly show everything they do to overcome these issues but will not happen overnight or anytime soon. The rubble and destructions in our home country are there for very long time. Australian Government should step in and assist our people here in Australia especially our fellow Pacific islands.
That's why Japanese are all over the Pacific offering all types help and assistants despite Australia's concern so as USA and New Zealand as well.
My points are while we have the opportunity in Australia why not give us a chance.
Our very poor country of Tonga 100% relying upon foreign aids on regular bases. They just can't provide or support for our Tongan people.
Online article, ‘Assessing the Aftermath of Tonga’s Volcanic Eruption and Tsunami’, published in the Diplomat on 19 February 2022.
Decision record dated 22 September 2023 relating to the delegate’s refusal decision.
Departmental case file.
Internal departmental records relating to the applicant.
Application for review
Application for review lodged 28 September 2023.
The Tribunal wrote to the applicant inviting her to attend a hearing on 20 December 2023 and to provide pre-hearing submissions.
The applicant did not respond to the Tribunal’s hearing invitation or provide any further submissions.
Failure to appear
Automated SMS messages were sent by the Tribunal to the applicant’s mobile number on 13 and 19 November 2023 reminding her of the scheduled hearing.
The applicant failed to appear before the Tribunal at the scheduled time, 9.30am (Brisbane time) and date, 20 December 2023.
Pursuant to s 426A(1A)(a) of the Act, the Tribunal has exercised its discretion to, by written statement under s 430 of the Act (this decision record), make a decision on the review without taking any further action to allow or enable the applicant to appear before it.
Country information
The DFAT country brief for Tonga provides (inter alia) that:
12.1.Australia responded rapidly and comprehensively to the eruption of the Hunga Tonga-Hunga Ha’apai underwater volcano and subsequent tsunami in Tonga on 15 January, guided by the requests and priorities of the Tongan Government, and in close coordination with our likeminded partners.
We delivered over 440 tonnes of emergency supplies and construction materials, including some supplies from partner nations and organisations. Australia also conducted 24 RAAF relief flights and deployed HMAS Adelaide, Supply and Canberra to deliver the supplies, lead clean-up operations and restore telecommunications. We provided an additional AUD 500,000 in support of the repair of Tonga’s international telecommunications cable.
Tonga’s two Australian-gifted Guardian-class Patrol Boats and landing craft were instrumental in the Tongan Government’s response, and evacuated affected populations.
Australia has provided an AUD 16 million recovery and reconstruction package for Tonga, including funding for reconstruction, telecommunications restoration, support for vulnerable groups, and COVID-19 support. The package includes funding for local non-government organisations to support community-based initiatives under the Australian Humanitarian Partnership.
12.2.Tonga has a small open economy which is vulnerable to external shocks. Tonga has faced an economic contraction due to COVID-19, but with donor support, has minimised some of the worst impacts on vulnerable communities.
The economy is heavily reliant on remittances from Tongans working overseas as well as foreign aid. The US is the main source of remittances, followed by New Zealand and Australia. Foreign development assistance in the form of loans, grants and direct aid is an important component of the Tongan economy.
Construction and infrastructure projects funded by donor grants and soft loans are sources of growth. Despite its economic challenges, Tonga remains one of the best performers in the Pacific in terms of progress against the Millennium Development Goals. Agriculture is the leading productive sector. The manufacturing sector is very small.
Tonga's main trading partners are New Zealand, Australia, Fiji, Hong Kong, the United States and Japan. Most Tongan exports are agricultural produce while imports cover the full range of consumer and industrial goods.
The Australian Institute of International Affairs report dated 23 January 2023, ‘After the Waves: One Year on from the Hunga Tonga-Hunga Ha’apai Eruption’, provides:
The 2016 World Risk Report listed the Pacific island nation of Tonga as the second-most exposed country in the world to natural hazards. Tonga has a history of cyclones and tsunamis, and it lies on the Pacific Ring of Fire, meaning regular earthquakes and volcanic eruptions. On 15 January 2022, the Hunga Tonga-Hunga Ha’apai volcano erupted. This was the most violent volcanic eruption globally since Krakatoa in 1883. The explosion was heard as far away as Canada, and the tsunami that followed left four people dead.
Every person in Tonga was affected in some way. Entire communities were left with nothing but the clothes on their back. Even one year later, some of Tonga’s idyllic tropical beaches are not safe to swim in due to toxins released by the volcanic ash. The ash also affected people’s lungs, although it is too soon to know if these effects are permanent. Entire underwater ecosystems were destroyed, as well as local infrastructure, crops, homes, ports, and schools. Loud noises, dark clouds, and the sound of rain still makes some Tongans nervous.
Although there is still much to be done, Tonga’s immediate, locally led response and recovery has been exceptional. Tonga has had support from numerous partners, including Australia, whose long-term aid programs enabled a productive response and recovery.
The effectiveness of the immediate and ongoing response demonstrates the importance of Australian aid in the Pacific, not only in providing humanitarian relief, but also in building long-term resilience. It also demonstrates the strength and resilience of the Tongan people, and shows why Australia needs to be a constant and supportive Pacific partner with the region’s long-term interests in mind.
Disaster response
The immediate response to the disaster was built on the back of a longstanding development partnership between Australia and Tonga. For decades, Australia has supported long-term projects in Tonga that focus on disaster response, capacity building, economic growth, education, environment, community resilience, and security. Australia supports Tongan government agencies, including the National Emergency Management Office (NEMO), and also works with Australian Humanitarian Partnerships and local civil society partners to deliver its programs.
After the tsunami, the Tongan government sent rescue missions to small islands, where some communities, such as that on the island of Mango, were completely displaced. With the guardian-class patrol boat VOEA Ngahau Koula, provided to Tonga by Australia under the Pacific Maritime Security Program, the Tongan Navy was able to deliver food, water, and shelter, as well as evacuate the 62 inhabitants of Mango island. Australian-provided vessels were also used to make initial damage assessments, evacuate injured people, and deliver aid provided by Australia and other partner nations to isolated communities in the outer islands. Not only were these vessels fit for purpose, but Australian-funded training programs enabled the Tongan Navy to use them effectively.
Australia also deployed HMAS Adelaide and HMAS Canberra to Tonga in the immediate aftermath of the disaster. This was not the first time either vessel had visited Tonga. Both ships had previously docked in Nuku’alofa and engaged in week-long exercises between Australian and Tongan forces. After the tsunami, Australian Defence Force personnel aided in cleaning up inundated areas, including beaches and islands. Australia’s continuous and active presence in the country meant that when HMAS Adelaide and HMAS Canberra arrived in Tonga, they were familiar and positive symbols of Australia’s commitment to Tonga, rather than unknown foreign vessels that the Tongans had never seen or interacted with. Their immediate and wholistic response reinforced positive perceptions of Australia.
Credit where credit’s due
While a lot of Tonga’s physical and economic recovery has been enabled by foreign aid – much of it from Australia – and their own government’s response, Tongans have also drawn on a deep well of psychological, social, and community resilience that comes from their own culture and institutions. After a disaster – whether a tsunami or one of Tonga’s frequent cyclones – Tongans turn to churches, local communities, and family networks for support.
Around 97 percent of Tonga’s population identifies as Christian. For most Tongans, the church functions as more than just a place of worship. It is also a large part of their social life, a source of comfort and welfare, and a fixture in everyday Tongan culture. For instance, when families from the inundated island of Atatā were evacuated to the main island, Tongatapu, they stayed in various church halls until they could be resettled.
Alei Paquette, a local teenager, explained that she, her family, and likely everyone else in Tonga, have lived in a constant state of alertness since the tsunami. However, she believes that Tonga’s regular experiences with disaster have built a level of resilience that allows for quick recovery from natural disasters. She said that the church was an important outlet for people who needed someone to talk to or support them. “Tonga will always take whatever gets thrown at them…In the end, I trust in God to keep us safe,” Alei explained.
Community organisations and local NGOs also play an important role in supporting community resilience. After last year’s eruption, the local Tongatapu community assisted evacuees from surrounding islands with food, as well as sporting equipment and creative activities for younger children to help them deal with the traumatic events, through a local NGO called Talitha Project, which is also supported by Australia.
Family networks have been key to recovery. Many displaced families have been able to stay with extended family on Tongatapu until they can resettle in permanent homes. While Tonga has a population of around 100,000, a diaspora of 150,000 live overseas, mainly in New Zealand, Australia, and the US. At the time of the disaster, those outside Tonga were unable to contact their family back home, and travel to Tonga was impossible until October 2022 due to COVID-19 restrictions. But even with border restrictions and communication problems, extended families overseas rallied to support loved ones back home. Tongans in Australia raised 1.2 million pa’anga (around A$730,000) and donated goods worth around $5 million to assist their affected fellow Tongans.
Looking forward
Australia plays a vital role in the Pacific by building national resilience and supporting Pacific island communities and institutions. Australia’s strong people-to-people links and longstanding aid commitments enable response teams to move quickly and effectively when disaster strikes. By recognising and supporting local strengths, including the role of churches, civil society, and family networks, and being responsive to the needs of Pacific governments, Australian aid dollars are more than just symbolic gestures of goodwill. They are a practical demonstration of Australia’s commitment to building a secure, sovereign, and disaster-resilient region.
This level of commitment is necessary to ensure the sustainability of Pacific islands, not only to withstand unexpected events such as the Hunga Tonga-Hunga Ha’apai eruption in 2022, but also to deal with the more frequent and extreme disasters that can be expected as a result of climate change. Furthermore, during a time of heightened geostrategic competition between Australia and China, positive relationships with Pacific nations are more important than ever for promoting Australia’s interests in the region.
The DFAT smartraveller advice for Tonga last updated 31 October 2023 provides (inter alia) that:
14.1.Volcanos
Home Reef Volcano began erupting on 10 September. The volcano activity poses low risk to residents of Vava’u and Ha’apai Island groups. Mariners are advised to stay at least 5kms from the volcano.
Parts of Tonga are severely impacted by and recovering from the Hunga Tonga-Hunga Ha'apai volcanic eruption and tsunami which flooded parts of Tongatapu and other nearby islands in January 2022. Work continues to improve communications in the outer islands, including the Vava'u and Ha'apai groups. Further explosive eruptions could occur in the area. Monitor media for the latest developments and follow the instructions of local authorities.
14.2.Tsunamis
Tsunamis can happen in Tonga. A tsunami can arrive within minutes of a nearby tremor or earthquake.
Being close to the Tonga Trench, strong earthquakes in the region could cause a destructive tsunami to hit within 20 minutes. …
14.3.Earthquakes
Tonga experience earthquakes. …
14.4.Severe weather
Tonga can experience natural disasters and severe weather, such as cyclones, earthquakes and tsunamis. …
14.5.Tropical storms and cyclones
The cyclone season is November to April. However, tropical storms and cyclones can happen throughout the year. This weather can bring on flooding, gale-force winds and disruptions to services. …
The UNSW Kaldor Centre for International Refugee Law Factsheet, ‘Climate change, disasters and displacement’, provides (inter alia) as follows:
Many more people are displaced by disasters each year than by conflict or violence. For those who cross an international border, only some will be eligible for protection under refugee law or human rights law.
What’s the context?
Each year, many millions of people are displaced by the impacts of climate change and disasters – about one person per second. Most of these people move within their own countries, but some are forced across international borders.
Who is in need of protection?
Legally, there is no such thing as a ‘climate refugee’ or an ‘environmental refugee’. But there are refugees whose predicament is made worse because of the impacts of disasters or climate change. Climate change and disasters provide a context in which existing persecution may be amplified, or exposure to risks may increase.
Human rights law protects people from being returned to life-threatening conditions or inhuman or degrading treatment. So, if circumstances are dire – say, if water, food, shelter and healthcare become too scarce – then protection might be forthcoming on these grounds. To date, however, no claims have succeeded on the particular facts at hand.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of her protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
The Tribunal notes the applicant first came to Australia [in] November 2016 having been granted a [temporary visa], returning to Tonga [in] May 2017. The applicant came to Australia again [in] November 2018 having been granted a [different] visa, returning to Tonga [in] April 2019. The applicant last came to Australia [in] November 2022 having been granted a further [temporary] visa, which ceased on 23 August 2023. Two days later, on 25 August 2023, the applicant applied for a protection visa.
The Tribunal notes the applicant asserts the occurrence of a volcanic eruption and tsunami in Tonga.
The Tribunal notes the country information reports the eruption of the Hunga Tonga-Hunga Ha’apai underwater volcano and subsequent tsunami in Tonga on 15 January 2022.
The Tribunal notes the applicant’s statement and accompanying online reports refer broadly to the volcanic eruption and tsunami in Tonga and the generally the impacts of climate change and mother nature, however do not explain the applicant’s personal circumstances or the impact, then and ongoing, of these events on the applicant specifically.
The Tribunal notes the applicant’s assertion in her statement that persecution does not happen in the south Pacific countries.
Based on the country information, the Tribunal considers it is possible the applicant was adversely affected in some way by the volcanic eruption and tsunami in Tonga.
The Tribunal notes the 2016 World Risk Report listed Tonga as the second-most exposed country in the world to natural hazards. Tonga has a history of cyclones and tsunamis, and it lies on the Pacific Ring of Fire, meaning regular earthquakes and volcanic eruptions.
The Tribunal considers that Tonga’s exposure to natural hazards is naturally occurring and unrelated to the intentions or actions of the Tongan government, authorities and/or individuals.

The Tribunal notes there is no evidence before it of the applicant having experienced targeted serious harm or otherwise significant harm when she was living in Tonga.
The Tribunal considers there is no evidence before it of the applicant being at any risk of targeted serious harm or otherwise significant harm if she returns to Tonga such as to engage Australia’s protection obligations.
The Tribunal considers that in the absence of such evidence, there is no basis to conclude that the volcanic eruption and tsunami in Tonga have amplified existing persecution or increased exposure to risks in relation to the applicant.
The Tribunal notes the United Nations Human Rights Committee determination in January 2020 in the case of Teitiota v New Zealand that people who flee the effects of climate change and natural disasters should not be returned to their country of origin if essential human rights would be at risk on return.
The Tribunal notes that decisions of the United Nations Human Rights Committee may be used by Australian courts as a persuasive source of interpretation of the International Covenant on Civil and Political Rights (ICCPR) (MIMIA v Al Masri [2003] FCAFC 70 at [146]-[148]). The Tribunal further notes that while Australia signed the ICCPR in 1972 and ratified it in 1980, Australia has never adopted it into domestic law.
The Tribunal considers that the United Nations Human Rights Committee determination in Teitiota v New Zealand is not binding on the Tribunal.
Given the applicant’s travel and visa history in Australia, the Tribunal considers it is likely the applicant applied for a protection visa because her last [temporary] visa had ceased and she had no other visa options available to her that would enable her to remain and extend her stay in Australia.
The Tribunal is satisfied that the applicant’s material does not raise any further protection claims requiring its consideration.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether she is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
36.1.The applicant is a citizen of Tonga and a non-citizen in Australia.
36.2.The applicant has no credible claims for protection under the refugee or complementary protection criteria set out in the applicable law.
36.3.If the applicant is returned to Tonga, there is no real chance that she would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
36.4.There do not exist substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga there is a real risk the applicant will suffer significant harm.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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 968

8 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction