2317450 (Refugee)

2317450 (Refugee) [2023] AATA 4828 (11 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2317450
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Wayne Pennell
DATE:11 December 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 December 2023 at 12:44pm
CATCHWORDS
REFUGEE – protection visa – Tonga – failure to attend scheduled hearing – natural disaster – volcanic eruption and tsunami in January 2022– homeless and displaced – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 441A
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 29 September 2023.
The applicant, who claims to be a citizen of Tonga, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Tonga, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]
[2]The applicant’s application was received by the Department of Home Affairs on 23 August 2023.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicant filed an application with the Tribunal to review the delegate’s decision (‘review application’),[5] and at a subsequent time, the Tribunal wrote to him and advised that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone.[6] He was then invited to attend an in-person review hearing scheduled for 11 November 2023. He was not represented in relation to the review.
[5]The applicant’s review application was filed with the Tribunal on 5 October 2023.
[6]The Tribunal advised the applicant on 20 November 2023.
CRITERIA FOR A PROTECTION VISA
The measures for a protection visa are set out in the Act[7] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[8] That is, the applicant 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.
[7]Migration Act 1958 (Cth), s 36.
[8]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[9]
[9]Migration Act1958 (Cth), s 36(2)(a).
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.[10] 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.[11]
[10]Migration Act1958 (Cth), s 5H(1)(a).
[11]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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, and 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.[12]
[12]Migration Act 1958 (Cth), s 5J(1).
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 the Act, which are extracted in the attachment to this decision.[13]
[13]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[14] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[15]
[14]Migration Act 1958 (Cth), s 36(2)(a).
[15]Migration Act 1958 (Cth), s 36(2)(aa).
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 expressly provided in the Act, which are extracted in the attachment to this decision.[16]
[16]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[17]
[17]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[18]
[18]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Tonga and he provided a copy of his passport to the Department authenticate this claim.[19] The Tribunal accepts the applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Tonga is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[20]
[19]The applicant’s passport was issued in Tonga [in] 2019.
[20]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[21]
[21]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[22] 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[22]Migration Act 1958 (Cth), s 499.
APPLICANT’S MIGRATION HISTORY AND APPLICATIONS
For completeness, the following chronology is provided to explain the applicant’s migration history since his arrival in Australia, along with the applications he has made and the communications he has exchanged with the Tribunal.
On 29 November 2021, the applicant was granted a [temporary work visa], which was due to expire on 8 December 2024. He subsequently arrived in Australia subject to the provisions of that visa [in] December 2021
On 23 August 2023, the applicant lodged an application for a protection visa. Accompanying that application were:
(a)Undated and unsigned single page document from or by an unknown source which references a volcanic eruption in Tonga on 15 January 2022;
(b)Article (single page) dated 19 January 2022 and titled “Tonga volcano: New images reveal scale of damage after tsunami;
(c)Undated Aljazeera article (single page) by Sanya Ruggiero titled “The day the world went dark: Survivor recalls disaster in Tonga”;
(d)Article (three pages) dated 19 January 2022 which appear to be the complete article titled “Tonga volcano: New images reveal scale of damage after tsunami; and
(e)Single page undated news article from The Guardian titled “Tsunami from Tonga volcano eruption leaves trail of flood damage”.
The Department subsequently acknowledged the applicant’s application and advised him that he could provide additional information relating to his claims or other evidence to support his claims, and the Tribunal notes that he was also granted a bridging visa A.[23] Over the next four weeks, the applicant did not take the opportunity to provide the delegate and additional information relating to his claims or other evidence to support his claims.
[23]On 31 August 2023.
On 29 September 2023, the delegate subsequently made a decision to refuse his application and he was advised of that decision on the same day.
On 5 October 2023, the applicant lodged an application (‘review application’) with the Tribunal to review the delegate’s decision. He also provided the Tribunal:
(a)Copy of identification pages of his passport;
(b)a statement, which is explained in greater detail later in these Reasons; and
(c)Copy of an undated article titled “Methodological considerations and caveats”.
The Tribunal subsequently acknowledged his review application and advised him that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible.[24] Apart from the initial statement and news articles he provided with his review application, the applicant has not provided any other evidence to support his claims and application.
[24]On 30 October 2023.
On 20 November 2023, the Tribunal wrote to the applicant and advised that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone. He was then invited to attend an in-person review hearing scheduled for 11 November 2023. He was provided with a hearing invitation form and asked to complete it and return it to the Tribunal within seven days. He did not respond to the Tribunal and nor did he return the hearing invitation.
The Tribunal observes that throughout the process of his application, the applicant has not been represented and all communications with him have been by way of emails to his private email address of [Email Address 1]. He did not provide a mobile telephone number to the Tribunal as a point of contact and as such the Tribunal’s standard SMS text messages that are usually sent to applicant five business days prior to the hearing, as well business day prior to the hearing could not be sent to him.
APPLICANT’S CLAIMS
In lodging his protection visa application, the applicant explained that he is seeking protection because of a volcanic eruption and tsunami which affected Tonga in January 2022. He was in Australia at the time of that event, having arrived a month earlier.
The applicant claimed that the underwater volcanic eruption caused a tsunami and toxic ash to strike Tonga. Houses, buildings and land were destroyed. People lost their lives. Many survivors lost their livelihoods. He went on to claim that although the Tongan government has received support, they do not have the resources to facilitate help to people who are suffering as a result of the tsunami. He claimed that if he returned to Tonga he would experience hardship because at the time of his application his home was still declared a disaster zone.
The Tribunal notes that in support of his application, the applicant provided to the delegate and the Tribunal media articles relating to the natural disaster which took place. Apart from those news articles, since filing his review application the only other material or evidence he has provided is a statement to the Tribunal in which he said:
REFUGEES ADMINISTRATIVE REVIEW TRIBUNAL QUEENSLAND.
Totally Disagree with refusing my Protection Visa Application. Findings Summary & Assessment. Remarks- On question & answers on Part- 4 to Part- 9
I have submitted extra more documentation as evidence of my claim under refugees and humanitarian circumstances particularly- Devastating & Displaced.
That's all there was very simple and clearly to understand the consequences deadly impacts as a result of Natural Disaster back in my home country Tonga.
Refugees' guidelines and definition of Displaced or Persecution are acceptable in this category with absolutely 100% correct.
Decision maker's findings after assessing my Protection Visa application was definitely incorrect.
I don't have any proof if Tongan government share some knowledge of the impacts from natural disaster that devastated our people to this day including myself and family.
Yes, of course there was heaps of financial donations from overseas including world bank and other foreign aids arrived in Tonga.
With millions and millions of dollars was donated for recovery.
This is the centre of the Tragic Problems we are facing today. Where are all those millions was donated.
Why are our people still suffering Homeless and Displaced.
It's all come down to the word corruption definitely or current government and also previous Tongan government and few more previous governments going back to seventies.
Obviously, we will continue to suffer while we are seeking protection from Australian government why because your department & so as foreign affairs department don't receive the actual true and correct stories and information concerning people like our self who still struggle to survive.
Now back to drawing board here in Australia with your department how much more to you want from us to prove our innocent claims.
How can you describe the word Displaced true meaning from Oxford dictionary.
We been denied our claim for Displaced, and I also have stated step by step why and how we are still suffering to this day.
Our corrupt Tongan government totally fail their duties and responsibility to protect and support its citizen from natural disaster despite all foreign aid's funds from all over the world arrived in Tonga but so far very tiny portion of all the funds went to good use of the country.
My application for protection visa must be reassess accordingly with reconsideration before any final conclusion.!!
THE REVIEW HEARING
As already outlined above in these Reasons, the Tribunal acknowledged the applicant’s application on 30 October 2023 and advised him that if he wished to provide material or written arguments for the Tribunal to consider, he should do so as soon as possible. At a later time, on 20 November 2023, the Tribunal again wrote to the applicant and advised that it had considered all the material relating to his application and he was invited to attend an in-person review hearing.
The applicant has never responded to the Tribunal, nor did he return the response to hearing invitation form. Because he did not provide a contact mobile telephone number to the Tribunal, the Tribunal’s automated SMS text messaging service could not be activated to send him reminders to attend the hearing. Ordinarily, those automated text messages are sent to applicants five business days prior to the hearing, as well as the day prior to the hearing.
The hearing was scheduled to commence at 9:30am on 11 November 2023 in Brisbane, and the applicant did not appear at the Tribunal at the scheduled time, date and place of the hearing. The Tribunal further notes that because the applicant had not provided a contact mobile telephone number as a method of contacting him, the Tribunal could not telephone him to ascertain his whereabouts. The only means of contacting him was an email address he provided when he applied for a review of the delegate’s decision. An email was sent to him on the morning of the hearing, however he did not respond and the hearing was subsequently cancelled.[25]
[25]Email sent to the applicant at 9:39am, and the hearing was cancelled at 10:07am.
Therefore, having reviewed the Tribunal’s file, the Tribunal is satisfied that all reasonable attempts have been undertaken to properly invite the applicant to a hearing in accordance with section 441A(5) of the Act, and he was allowed significant and sufficient time to attend the hearing before it was cancelled.[26]
[26]Hearing scheduled to commence at 1:00pm and was cancelled at 1.53pm.
When careful consideration is given to those circumstances as outlined above, the Tribunal finds that there has been no satisfactory reason provided by the applicant for his failure to attend the scheduled hearing and the Tribunal has proceeded to make a decision in his absence.
CONCLUSION AND REFUGEE FINDINGS
The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Tonga, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[27]
[27]Migration Act 1958 (Cth), s 36(2).
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[28] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[29]
[28]Migration Act 1958 (Cth), s 5AAA.
[29]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

The definition of a refugee is provided within section 5H(1) of the Act, and it explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is provided within section 5J of the Act and this includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
It is the applicant’s claim that he cannot return to Tonga because of the January 2022 natural disaster and the economic situation in Tonga. Those features do not relate to any of the reasons outlined within the provisions of section 5J(1)(a) of the Act and the applicant has not provided the Tribunal with any other information or evidence to show that he will be subjected to harm upon his return to Tonga.
Having carefully assessed the applicant’s claims, the Tribunal is not satisfied the applicant has a well-founded fear of persecution as he does not fear being persecuted for reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by section 5J(1)(a) of the Act.
Therefore, the Tribunal is satisfied that the facts, circumstances and features of the applicant’s claims leads the Tribunal to a finding that the applicant is not a refugee as defined in section 5H of the Act, and nor has he satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[30] the Tribunal has considered the alternative criterion.[31] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Tonga, there is a real risk that he will suffer significant harm as it is defined in the Act.[32]
[30]Migration Act 1958 (Cth), s 36(2)(a).
[31]Migration Act 1958 (Cth), s 36(2)(aa).
[32]Migration Act 1958 (Cth), s 36(2A).
Because of the findings already outlined, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant would suffer significant harm for any of the reasons he claims if he returned to Tonga. Helpfully, the courts have discussed the test for ‘real risk’ and determined that the real risk test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[33]
[33]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Tonga now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or to cruel or inhuman treatment or punishment, nor will he be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance the applicant will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group in Tonga. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Tonga, he will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
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 section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Wayne Pennell
Senior Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4828

11 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Natural Justice

Procedural Fairness

Judicial Review

Standing

Statutory Construction

Jurisdiction