2317000 (Refugee)

2317000 (Refugee) [2024] AATA 1225 (14 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2317000
COUNTRY OF REFERENCE:                   Solomon Islands
MEMBER:Anne Grant
DATE:14 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 14 March 2024 at 11:20am
CATCHWORDS
REFUGEE – protection visa – Solomon Islands – family violence – undetailed claims in written application, assisted by another person – significant and compelling claims and evidence at hearing – refusal of arranged/forced marriage with older man – assaulted and threatened by family elder uncle and sought after relocating – police inaction – country information – gender-based violence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant has provided evidence of her citizenship of the Solomon Islands. She applied for the visa on 22 August 2023. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a refugee and, in the alternative, that there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being returned to Solomon Islands, there was a real risk that the visa applicant would suffer significant harm.
The applicant appeared before the Tribunal on 28 February 2024 to give evidence and present arguments. At the applicant’s request, the hearing was conducted by video conference using the Microsoft Teams application. The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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 visa applicant is a citizen of Solomon Islands. There is no suggestion that she has a right to enter and reside in any third country. Solomon Islands is the country of her nationality and the receiving country in considering her protection claims.
The visa applicant arrived in Australia [in] August 2021 on a [Specified 1] visa. She was later granted a [Specified 2] visa which ceased on 28 October 2023. She lodged the application for protection on 22 August 2023.
At hearing, the applicant gave evidence that someone helped her with her written application due to her ‘poor written English’, but she knew what was written and it is all correct. In her written claims, the applicant stated that she left Solomon Islands due to family violence. She stated that the violence was from members of her own family, and that even though she tried to talk to them about it, they never gave her a chance. If she returns, she claimed that the same ‘stuff’ will happen, they will keep treating her with no respect. She described how the injury was severe with a lot of yelling, screaming, pushing, and shoving, and the persons guilty were her own family. They wanted to make her feel awful so they could show off in front of other family members.
In her written claims, the applicant said that the authorities of her country will not protect her because they don’t care about what’s happening in family violence. She moved to another part of the country to seek safety and added that ‘I did not want to seek help in case it would make the situation worse than it already was, so I just didn’t bother and tried to deal with it.’
The applicant also stated in her written claims that she could not relocate within Solomon Islands because her family will easily find her.
At hearing, I noted that the applicant had not given much detail in her written claims, such as who amongst her family had harmed her, when, and what had happened. The applicant responded by giving significant and compelling detail about the violence she experienced and that she still fears. The evidence she gave was as follows (in summary):
·On her birthday, [in] 2021, the family were getting ready to celebrate with a big party. Her uncle, (the elder of her father’s family) had planned an arranged marriage for her. She had not agreed to the marriage. Her father had told her he would leave it to her to decide, but her uncle had other ideas. He arranged the marriage to align with the groom’s family for his own tribal reasons. The applicant is the oldest girl in her family and their customs are that her marriage can be decided by the elders, even if you do not agree.
·When the party was underway, she discovered that they had invited the man they wanted her to marry and had decided to do the marriage at the same time – that is, during the birthday party. He is much older than her, another whole generation, and she has nothing in common with him. Her uncle came in and told her it was all arranged so she had to ‘go on with it.’ The applicant said she became outraged, and smashed the birthday cake, saying she did not agree and would not marry the man.
·On that day her father was there, but he could not do anything to stop his brother. Her mother was not there, because she was with her younger sister who was about to give birth to a baby. She and her sister are the only children in the family.
·When she refused to go ahead with the marriage, her uncle physically attacked her. He pushed her and kicked her very hard in the ribs. She was shocked and ran away before he could keep abusing her, but he followed her.
·He caught her and pulled her hair, slapped and kicked her. She ran from the place where the party was towards her home, and then inside her home but he chased her and hit her on the way. Even when she got home he came into the front door with a branch of a guava tree he had grabbed and started beating her with that. Other family members were there, trying to stop him including her father and her auntie. While they were trying to get him to stop and to leave, she crawled into her bedroom and locked the door.
·She called the police two or three times from her room but they never came – and her family told her that they also tried to call them to calm her uncle down. There are no police nearby their home on the island where they lived and so they would have had to come from elsewhere. Most of the time, they don’t bother to turn up, anyway.
·For about two weeks, she could hardly walk, due to her injuries, mainly to her ribs. Her uncle was still demanding that she go ahead with the marriage. Her family tried to help her and dissuade him, but he was always persisting. When she could finally walk, she used her savings and bought a ticket to Honiara where her sister lives and where her mother was. She hid there.
·Her uncle came to Honiara to try to find her, but her sister is married to a different tribal family and he wasn’t sure where she was. The applicant stayed with them until she was able to organise a visa to leave Solomon Islands. In the meantime, she lived in hiding, barely going out. Her uncle was asking everyone he could find from her home island where she was. He was telling everyone that he would make her go through with the marriage, or he would kill her.
·I asked if her family had sought help from the elders of the village to try and protect her. She said that they had, but her uncle told the village elders that it was his right as the oldest man of the family to arrange the bride price and the marriage, and they had no right to stop him. He said he could do what he wanted and they would have no say in it. Her father was powerless as a younger member of the family.
·The applicant and her family lived on [Island 1] in [Province]. Her uncle lives on [Island 2] which is in the [specified region], but he also has a business in Honiara which is run by his family. He is often in that area. The applicant described Honiara as about [Australian regional city] sized – a small city, and said that it is hard to live there unless you have family connections or a way to get some land.
·While she was hiding in Honiara, she kept hearing negative comments from friends while her uncle was looking for her. He told people that when she returns, he will meet her at the airport and ‘use a knife on her stomach’. This is what he continued to say.
·When he heard that she had left the country, her uncle said that he will kill her if and when she returns. She has since ceased contact with anyone connected to her home area, such as school friends, because he was always looking for her. She told them to tell him that she is never coming back.
·In December last year, her father retired and her family returned to the ancestral village on [Island 2]. Up until then, she spoke to her family from time to time and they told her that her uncle was still insisting that she carry out the arranged marriage and threatening to harm her if she returned without agreeing to do what he wanted. Her father told her that if she returns, her uncle and people supporting him will be waiting to force her to marry. Her family has been unable to convince him to change his mind. Since her family returned to [Island 2], she hasn’t spoken with them as the area is remote; and after all, they are now living near her uncle and she doesn’t want him or other members of the extended family to hear anything at all about her, even that she is in Australia.
·She does not believe that she could live safely anywhere in Solomon Islands. She stated that you can’t just live anywhere, you have to have some connection to where you live. There are also family in many areas (including Honiara) who are ‘on his side’ and who would be prepared to tell him where she was, even if she tried to relocate and live in hiding. In response to my question about how he was unable to find her in Honiara before she left, (give how sure she was that he would find her throughout the country if she returns) the applicant gave evidence that she suspects that he was a little afraid of her sister’s husband’s family who are a completely different tribe and not well known by her uncle and that was why he didn’t dare to harass them to find her before she left the country.
·Over the past few years, her sister has developed her own issues with her in-laws and the applicant does not think she could stay with them for long, if at all, or that they would be prepared to support and hide her from her Uncle. Even when she was with her sister, they were not happy about her problems and did not approve that she had tried to get the police involved in her dispute. Their view was that such matters should be handled ‘within families’.
·The applicant said that there is nowhere she could go in Solomon Islands, as she has no family that she could live with and be safe, and she could not live in hiding forever. She would need to find work to support herself so hiding permanently was not an option.
·If she returns, the applicant believes that her uncle and family aligned with him will force her to marry the man they chose and if she doesn’t, they will harass, mistreat and kill her.
Having had the opportunity to hear and consider the applicant’s evidence, I accept that she was describing a series of distressing events which she personally experienced commencing on her birthday in 2021. I accept that her fraternal uncle has arranged her marriage, will not respect her wishes not to marry his chosen groom, and that he has violently assaulted her with complete impunity when she refused to agree with his arrangements. I accept that the applicant’s parents and some relatives have tried to protect her, but her uncle culturally holds considerably more power than they do, and they were unable to prevent him from hurting or threatening her. I accept that the police and village elders are unable or unwilling to provide any protection to the applicant from violent assault or forced marriage, in the form of arresting, prosecuting or even disciplining the perpetrator.
I accept that the applicant and her family tried to report the attack to police shortly after it occurred but without any perceivable impact. The police did not attend or even acknowledge the report. I accept that her uncle is and is considered to be the elder of the family and is of the view that he has the right to force the applicant to marry as he chooses and if she fails to do so, to assault and kill her without any repercussions.
I consider that the applicant’s verbal evidence is generally consistent with her written claims but provides much more detail. I do not place any adverse weight on the lack of detail given in the written claims, given the nature of her evidence, and that she was relating them to a third party. I noted how genuinely distressed she was as she related the events of her birthday and afterwards at hearing. I accept that the applicant continues to be in fear of her uncle after his violent assault on her and the subsequent multiple threats he has made that he will impose his will on her, or take her life when and if she returns to Solomon Islands.
Is the applicant a refugee?
The applicant fears that she will face ongoing threats, assault, harassment, a forced marriage and possibly murder if she returns to Solomon Islands from her paternal uncle if she refuses to marry in accordance with his wishes. The harm she fears is serious harm.
Her uncle has systematically sought to find and harm her, and his conduct is discriminatory, based as it is on cultural misogyny and disregard for the rights and safety of the applicant as a woman in Solomon Islands. The persecution involves systematic and discriminatory conduct.
The applicant does not fear harm because of her race, her religion, her nationality or her political opinion. The visa applicant did not specifically verbalise the reason why her uncle perpetrated the abuse and harm that he undertook against her. Nonetheless, her evidence discloses that he overbore her will and assaulted her because he was of the view that he had supreme power over her marital and personal future as the family elder and because she was the oldest female child in the family.
According to general country information, gender-based violence is prevalent in the Solomon Islands. An ABC news report dated 6 April 2020 reports that two thirds of women aged 15 to 49 describe having experienced physical or sexual abuse by a partner.[1] According to US Department of State’s most recent report on Human Rights Practices 2023, sexual harassment is also a widespread problem, and gender based violence is widely unreported, customary bride price payments remain common and contribute to the perception of male ownership of women. This report also observes, “While the law accords women equal legal rights, including the right to own property, most women were limited to customary family roles that prevented them from taking more active roles in economic and political life.” [2] The country information generally describes key reasons for failing to report abuse as including pressure from male relatives, fear of reprisals, feelings of shame and cultural taboos of discussing such issues.
[1] Solomon Islands is no paradise for women. These people are leading the charge for change - ABC News 6 April 2020.
[2] 2022 Country Reports on Human Rights Practices: Solomon Islands, US Department of State, at Section 6, Discrimination and Societal Abuses.
Disturbingly, inequitable gender norms are common in the Solomon Islands. Three-quarters of men and women believe violence is acceptable, especially if a woman is ‘disobedient’ according to that ABC report mentioned earlier.
I accept that women in Solomon Islands face high levels of discrimination and male violence due to cultural prejudices and attitudes about gender, including a belief that women are property which can be traded by males for tribal, financial and cultural reasons. The applicant’s evidence of gender-based violence and discrimination is disturbingly consistent with the general country information about cultural attitudes to women in Solomon Islands. I am satisfied that the essential and significant reason for the persecution feared by the applicant is her membership of the particular social group of women.

In considering whether the persecution feared by the applicant is well founded, I have had regard to general country information. Significantly in this case, the Solomon Islands is made up of many islands, some of which are sparsely populated and where populations are frequently limited to specific family or tribal groups. In addition, country information also describes how travel between different regions of the country can be difficult, and most islands have limited access to police and other law enforcement mechanisms, significantly restricting the access of persons living in remote regions to effective protection and support from violence within a reasonable period of time, or at all.
A 2019 joint study by Australian Aid and the Government of the Solomon Islands examined how police respond when women report family violence incidents. In most cases, (47 per cent) women reported receiving no information or action from the police, were told to ‘come back later’ or discouraged from filing a report. When domestic violence reports are filed with the police, it can take up to two years for the charges to be heard in court.[3]
[3] Women’s experiences of family violence in Solomon Islands’, Australian Aid & Government of the Solomon Islands, 26 November 2019, p.26 & p.6.
Solomon islands is an archipelagic state, comprising over 1000 islands of nine main groups. The population of Solomon Islands is significantly less than one million people, (Home affairs estimates a population of 720,956). The population is spread across the many islands with the largest population on Guadalcanal. It is also one of the poorest of the Pacific countries, with just under a quarter of Solomon Islanders being paid and working in the formal sector of the economy. [4] Honiara, the capital, has an estimated population of 111,987, consistent with the applicant’s evidence that it was equivalent to an Australian regional city in size.[5]
[4] Department of Home Affairs Solomon Islands country brief available here: Solomon Islands country brief | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
[5] Honiara Population 2024 (worldpopulationreview.com)
After considering the country information and taking into account the cultural attitudes which clearly motivated her Uncle’s conduct, and his ongoing motivation to save face and use the applicant to build his tribal alliances and possibly his wealth, I am satisfied that there is a real chance that the visa applicant’s uncle will continue his campaign of abuse, threats and violence against the applicant if she returns to her home country, now and for the foreseeable future. I am satisfied that there is a real chance that he will kill or violently assault her if she continues to refuse to agree to marry as he wishes. I accept that he continues to have a desire to demonstrate his tribal power by compelling her to comply with him, failing which, (and based on his prior conduct and threats,) I accept that he will harass, seriously assault or murder the applicant. I consider that he will be assisted in his persecution by other members of the applicant’s extended family.
Having regard to my findings about her past experiences, the ongoing nature of the threat and the country information, I am satisfied that there is a real chance that the applicant will experience ongoing persecution at the hands of her Uncle and other members of her extended family if she returns to Solomon Islands.
I have taken into account the relatively small population of the Solomon Islands, the sparse spread of the country’s population, the small size of even the largest city and the applicant’s uncle’s connection to Honiara and the fact that her own immediate family (the only support she has) are now living on [Island 2] near him. Even if the applicant had some other means of support on her return, and didn’t have to work, I am satisfied that it would be extremely difficult for her to avoid coming to her uncle’s notice on return to her home country, and also after she has returned. I accept that she will have to find and maintain work to survive without any family support, and therefore would be continually vulnerable to being discovered by her persecutors event).
The persecution is because of her gender, and there are no reasonable steps she could take to modify her behaviour to avoid the real chance of persecution. In the circumstances of this case, I find that the applicant has established that the real chance of persecution relates to all areas of the receiving country.
I accept that the country information supports the applicant’s claim that the police and tribal elders are unable to provide her with effective protection from the harm she fears if she returns to Solomon Islands. I find that she is unable to avail herself of the protection of any authority in her country from the harm she fears.
I find that there is a real chance that the applicant will suffer persecution in Solomon Islands at the hands of her uncle and other extended family members now or in the reasonably foreseeable future because of her membership of the particular social group of women in Solomon Islands. I find that the persecution involves serious harm to the applicant, and that it involves systematic and discriminatory conduct. I also find that the real chance of persecution relates to all areas of the country and that the applicant is unable to avail herself of the protection of her home country.
I conclude that the visa applicant has a well-founded fear of persecution in Solomon Islands, and that she is a refugee as described in s.5H.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Anne Grant
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 1225

14 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Natural Justice