2318881 (Refugee)

2318881 (Refugee) [2024] AATA 1382 (19 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2318881

COUNTRY OF REFERENCE: East Timor
MEMBER:Jessica McLeod
DATE:19 April 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 April 2024 at 4.55pm

CATCHWORDS
REFUGEE – protection visa – Timor-Leste – particular social group – member of a martial arts group – attacks by criminal gangs – fear of killing – street violence – economic conditions – employment – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 review of a decision made by a delegate of the Minister for Home Affairs on 20 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Timor-Leste, arrived in Australia [in] June 2023 on a subclass 403 temporary work visa. He applied for the protection visa on 9 October 2023, claiming he needs protection to escape violence from martial arts groups in Timor-Leste.
At the primary stage, the delegate decided the application on the papers. The delegate refused to grant the visa, finding based on country information, that the applicant could obtain protection from the authorities in Timor-Leste, and therefore, the applicant is taken not to have a well-founded fear of persecution or to face a real risk of significant harm.
The applicant appeared before the Tribunal on 2 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife in Timor-Leste via video link. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum 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, to the extent that they are relevant to the decision under consideration. This ordinarily would include country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, however there is no such report on Timor-Leste.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a refugee, meaning he has a well-founded fear of being persecuted in Timor-Leste for one or more of the five reasons set out in s 5J(1)(a) and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Timor-Leste, there is a real risk he will suffer significant harm.
Written protection visa application
In his written application lodged on 9 October 2023, the applicant claimed that he was seeking protection because he had become involved in a martial arts group/gang which he was trying to escape due to their conflicts with (including fighting and killing) other gangs. He indicated that he had not previously experienced harm in Timor-Leste, but he feared he would be harmed and killed if he returned. He indicated he did not think the authorities could or would protect him and that he did not think he would be able to relocate to an area where he would not be harmed.
Tribunal hearing
At the Tribunal hearing on 2 February 2024, the applicant gave the following evidence which can be summarised as follows:
He is married has [number] children, including a child born after he arrived in Australia. His wife and children reside in [Region 1], Timor-Leste, along with his mother and sisters. His father passed away in 1999. He has two brothers who are living and working as [specified jobs] in Dili, Timor-Leste.
The applicant attended school and studied [subject 1] through [a named university] (in their [Region 1] branch) [between specified years]. He studied in [Region 1] but travelled to Dili to attend his graduation ceremony. He has never worked in any field related to his studies.
Before he came to Australia, the applicant was a [farmer] in [Region 1], which would enable him and his family to buy milk and just meet their needs. However, he moved to Dili in 2020 to try to find other work. He did [specified jobs] there when the work was available. However, after an incident in August 2020, he returned to [Region 1].
The applicant is working in Australia and sending money back home to his family in Timor-Leste. While his wife and children currently live with his mother, he is hoping they will be able to build their own house.
The applicant joined a martial arts group in Timor-Leste called [Group 1]. He described it as a very big sports group which was formed in Indonesia but was now recognised in Timor-Leste. They focus on sports training, but there are ritualised elements too, [details deleted].
He first became involved because he liked the training aspect, however the group has changed in ways he didn’t expect. He started training with them in 2019 and graduated [in] August 2020, in a ceremony in Dili. The graduation is a significant event – all the graduates assemble and are given their uniforms and belts, and senior people from Indonesia also attend. There were a lot of [graduates] at his graduation ceremony.
Following his graduation ceremony, members of the rival group, ‘[Group 2]’ were jealous and attacked the graduate’s convoy. It developed into a big fight and the groups stoned each other. The applicant was not injured. This was the first and last time he was ever involved in a fight or any violence. After that incident, [Group 1], [Group 2], and another group would look for each other and beat each other up or throw stones at each other, but he was not personally involved. He stayed with [Group 1] and continued to train with the group and would be involved in training new people. However, he was only involved in the sports and training aspects of the group.
The conflict between these groups is ongoing. This level of violence between the groups in Dili surprised him; in his home area in [Region 1], these sorts of problems didn’t occur. Sometimes individuals from different groups in [Region 1] would fight each other but it didn’t reach the point of whole groups hating and attacking each other for no reason. He believes it was worse in Dili because there were people from everywhere there, whereas in [Region 1], it was generally just people native to [Region 1], and they didn’t have such problems with each other. However, he said, although [Region 1] is peaceful, he can’t live there because he needs to support his wife and children.
I asked the applicant about his brothers who also lived (and still live) in Dili. He said they were not involved in [Group 1]. Nor has he suggested they are involved in any other group.
I asked the applicant if he had faced any other problems in Dili before coming to Australia. He said it was really hard when conflict problems arose in his suburb – he couldn’t leave the house as he feared he could be recognised as a member of [Group 1] and get hurt. The fear traumatised him and he also worried about how he could provide for his wife and children.
When asked if anyone ever recognised him as a member of the [Group 1] group, the applicant said “yes”. He said he was recognised at the graduation as [Group 2] could clearly see that he was with [Group 1], and after that, they would try to follow him; it was really stressful.
He said that after he graduated in August 2020, he stayed in Dili and for a while. The situation wasn’t so grave, but it then worsened as people were spying on each other and attacking each other. He said thinks he returned to [Region 1] at the beginning of September.
I asked the applicant where he would return to in Timor-Leste if he did not get an Australian visa and had to return. He said he would return to [Region 1], but there is no work there so it would be very challenging for him, and he could not assure his children’s future.
I put to the applicant that even if I accepted his claims were credible, I would need to consider whether he would face a real chance of harm or a real risk of harm on return. I said that I had doubts as to whether he, as an ordinary [Group 1] member who was not in a leadership position and had not sought to involve himself in any violence, would be targeted and harmed. He responded that the leaders of these groups are involved in the politics, but it is small, everyday people like him that are incited to fight and get involved in the fighting, because of personal hatreds.
I raised with the applicant that following the 2020 graduation day incident, he had managed to live and work in Dili for the three years before coming to Australia and this made me question whether he would face a real chance of being harmed there if he returned. I questioned whether it was plausible that he would even be identified or recognised as a member of [Group 1] if he returned. The applicant responded by emphasising that he didn’t stay in Dili the whole time, because the conflict situation worsened in Dili, so he returned to [Region 1] and lived there for most of that period but returned to Dili again in 2023.
I noted to the applicant that he hasn’t been a member of the group or been in Timor for more than seven months. I asked him how anyone would identify him as having been involved in the group. He responded that in his little suburb everyone talks to each other and knows what each other are doing. I asked why he couldn’t live in a different suburb in Dili. He responded that there is no housing.
I asked the applicant, if he returned to Timor, would he still involve himself with [Group 1] or a martial arts group? He responded that when he graduated with [Group 1], he had made an oath and he will always be one of their members. I asked if he would have to go back and train with them or do anything with them and he responded that if he went back to [Region 1], he would involve himself, but he would not do it in Dili because of the conflicts. He also noted that the government has now banned all activities of martial arts and training in Dili.
The applicant’s wife gave evidence to the Tribunal via video link. She corroborated his claims regarding his membership of [Group 1], the conflict between martial arts groups and the dangers experienced because of this in Dili. She said he was not safe there and he had to come back to [Region 1] and stay until he could go to Australia to work. She also reiterated his claims about there being no work in Timor-Leste and that she wanted him to extend his stay in Australia and work.
The applicant was asked if he would like to provide any further information following the hearing, but he declined.
ANALYSIS AND FINDINGS
Identity / Nationality
The applicant has provided copies of his Timor-Leste passport and at the Tribunal hearing, the applicant answered various questions pertaining to his identity and background in a manner consistent with someone recalling their personal experience. No concerning issues have arisen; I accept his nationality, identity and also his background are as claimed. I find that Timor-Leste is the receiving country for the purpose of this review.
Fears arising from conflicts between martial arts groups)
I have reflected on the applicant’s evidence as to his protection claims and I consider that he has given a forthright, honest and mostly credible account of his personal experiences and his fears. His claims are also plausible when considered with country information about inter-group fighting between martial arts groups and street gangs in Timor-Leste.
Country information indicates that a lot of young people in Timor-Leste have joined martial and ritual arts groups (MRAGs) in large numbers since Timor-Leste’s independence. MRAGs are reported to have roots in the Indonesian occupation, resistance struggle and Timorese society and factors driving membership include the exclusion of young people from the development process, poor educational and employment opportunities and lack of facilities and events for youth engagement.[1]
[1] Fundasaun Mahein, ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy ’, 27 September 2022, 20230222133207
Martial and ritual arts groups are said to have complex histories with roots in the Indonesian occupation, resistance struggle and Timorese society, and that membership has been driven by factors such as the exclusion of young people from the development process, poor educational and employment opportunities and lack of facilities and events for youth engagement.[2] MRAGs have nationwide reach with branches at the district and village level. The applicant’s group, [Group 1] is [a large and] influential group and claims to have [number] members.[3] Membership of MRAGs has reportedly increased in recent years.[4]
[2] Fundasaun Mahein, ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy ’, 27 September 2022, 20230222133207
[3][Souce deleted.]
[4] Fundasaun Mahein, ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy ’, 27 September 2022, 20230222133207; Small Arms Survey, ‘Groups, gangs, and armed violence in Timor-Leste’, Number 2, April 2009, 20230222133948
While MRAGs have influence in every district, and there are reports of communal violence at the village level and in rural areas, Dili has been described as the main area of focus, where fighting has been ‘public and frequent.’[5] There are examples of such conflict in Dili as recently as in 2022 and 2023.[6] As the applicant claimed too, there are MRAG members within Timor-Leste’s security forces and political parties.
[5] Small Arms Survey, ‘Groups, gangs, and armed violence in Timor-Leste’, Number 2, April 2009, 20230222133948
[6] Tatoli, ‘Prime Minister Ruak urges young people to avoid conflict’, 24 January 2023, 20230224154711; Fundasaun Mahein, ‘Martial and Ritual Arts Groups: a complex challenge requiring an integrated strategy’, 27 September 2022, 20230222133207
DFAT’s current Smart Traveller Travel Advice warns travellers that local unrest happens in Timor-Leste, including street gang fighting and political demonstrations, and that minor disputes can escalate into violence without warning.[7] DFAT notes there is a history of gang-related violence, robbery, arson and vandalism in major towns, especially Dili, and refers specifically to violence between rival martial arts groups:
“Martial Arts Groups (MAGs) and Ritual Arts Groups (RAGs) are mass membership organisations with a complex history in Timorese society and political culture. On 10 November 2023, the Timorese government announced a six-month ban on all MAG and RAG activities. Rival groups are frequently involved in violence against each other, which increases the potential for local disputes between individuals or families to escalate into communal violence.”
[7] Australian Department of Foreign Affairs and Trade, ‘Smart Traveller: Timor-Leste’, accessed on 15 April 2024
As the applicant said, MRAGs are currently banned in Dili.
I accept the applicant was a member and trained with [Group 1], and that while travelling in convoy with other [Group 1] members after the graduation event, he was caught up in an attack by a rival gang. However, while he claims he was followed by [Group 2] members after the event, the evidence does not suggest they ever approached or harmed him and given his low level involvement and the large numbers of [Group 1] members, it is not plausible to me that they would surveil or follow the applicant over any period without taking further steps. While I accept the applicant’s sense of fear and caution was heightened following the graduation day incident, and that he was fearful about any further retaliation or unfinished business from [Group 2] against any [Group 1] member, I do not accept he was a personal target or was personally followed.
I otherwise consider that the applicant has given credible evidence and I accept that he genuinely holds a subjective fear of being harmed in inter-group conflict between martial arts groups in Timor-Leste and is genuinely worried about his financial situation and being able to provide for his family.
However, for the reasons that follow, I am not satisfied the applicant is a refugee or entitled to complementary protection.
I give weight to the fact that the applicant is just an ordinary member of the [Group 1] and that he now hasn’t been engaged with the group, or in Timor-Leste for more than 10 months. His involvement with them was limited to the sports and training aspects and the only time he was ever involved in a fight was when the [Group 2] group attacked the convoy of [Group 1] he was in, following their large scale graduation ceremony. As such, I consider his involvement was at a very low level only. I consider that unless he is seen training or with other members of the [Group 1] or wearing identifiable [Group 1] attire, the chance that he would be personally remembered by any rival gang members as a member of the [Group 1], or otherwise identified or perceived as a [Group 1] member, and targeted on such basis is remote, at best. I also give weight to the applicant’s own evidence that the conflict is not generally an issue in [Region 1], unlike in Dili, and that he would only re-engage and train with the [Group 1] if he was in [Region 1]. Further and relevantly, the applicant confirmed he wouldn’t do it in Dili, because of the conflicts, and I accept and give weight to this, and also give weight to the fact that MRAGs are banned in Dili.

Consistent with the applicant’s assertion, the country information sources consulted do not highlight [Region 1] as being a key site of violence between martial arts groups or street gangs. Even if he returns to [Region 1] and takes-up his training and connection with the [Group 1] there, I find he will not face a real chance of being harmed on account of his membership and connection with the [Group 1], nor of being caught up in any int-group or street violence, as a bystander. For the same reasons, and noting that the purposes of complementary protection, real risk equates to the same standard as real chance, I also find he does not face a real risk of being harmed in [Region 1].
As for Dili, I have found above that the applicant was just an ordinary, low-level member of the [Group 1] and that unless he is seen training or with other members of the [Group 1] or wearing identifiable [Group 1] attire, the chance that he would be personally remembered by any rival gang members as a member of the [Group 1], or otherwise identified or perceived as a [Group 1] member, and targeted on this basis is remote, at best. That is, I find that the applicant does not face a real chance of being targeted and harmed (including seriously harmed) for his membership or affiliation to [Group 1] in Dili.
While I have found the chance of him being harmed there for his membership or affiliation to the [Group 1] is remote and not real, on a separate and independent basis, and noting the applicant said he would not re-engage with the [Group 1] again in Dili, I have considered whether this would be a reasonable step the applicant could take to modify his behaviour so as to further avoid the chance of harm in Dili. Having considered the applicant’s low level involvement in the past was limited to the sports and training aspect which he said is what he likes, I consider that refraining from training and engaging with the [Group 1], or wearing identifiable attire, in Dili, is a reasonable step the applicant can take to further lower the chance or risk of his being harmed. I consider that not engaging in this with the [Group 1] (or any rival group), and not wearing identifiable [Group 1] attire or spending time with [Group 1] (or rival group) members would not in itself amount to serious harm, and nor would it conflict with a characteristic that is fundamental to his identity or conscience. Nor would it require him to conceal an innate or immutable characteristic or require him to do any of the actions prohibited by s 5J(3)(c). In the circumstances, I am satisfied the applicant could take reasonable steps to modify his behaviour to further avoid any chance of persecution. As s.5J(3) applies, the applicant also does not have a well-founded fear of persecution for these reasons.
I have found above that there is only a remote chance, and therefore not a real chance, of the applicant being harmed (including seriously harmed) for his membership or affiliation to [Group 1] in Dili. For the same reasons and applying the authority in MIAC v SZQRB (2013) 210 FCR 505, I am satisfied there is not a real risk of the applicant facing significant harm for these reasons in Dili.
On a separate and independent basis, I was also satisfied the applicant could take reasonable steps to modify his behaviour to avoid and further reduce any chance of persecution for these reasons. I note that s.5J(3) of the Act does not apply to the assessment under complementary protection, but as a question of fact, I find he would refrain from training and engaging with the [Group 1] in Dili, and that this would further reduce the already remote chance that he would be harmed for these reasons there. For clarity, I do not accept that the refrainment of such would itself amount to serious or significant harm.
I find that in relation to the martial arts group claim, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Timor-Leste, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).
Economic claims
The applicant has expressed multiple times, his concerns about not being able to find work if he returns to Timor-Leste. I accept he is concerned about his financial future, and that of his family.
I discussed with the applicant the concept of serious harm and explained that, although examples of serious harm in the Act include significant economic hardship and denial of capacity to earn a livelihood or access basic services, the degree of seriousness would need to be such that it threatens his capacity to subsist, and that a relevant factor too, is whether such harm is intended. I also explained the concept of significant harm for the purposes of complementary protection, including, for the purposes of cruel and inhuman treatment or punishment and degrading treatment or punishment, the concept of harm being intentionally inflicted through act or omission. I put to him that I might not be able to find that he met the criteria in these respects. The applicant responded that he had nothing to say, but please could the Tribunal extend his stay.
I accept that the applicant has previously found it difficult to find work in Timor-Leste, particularly in [Region 1] and that he will likely face difficulties upon return. Country information indicates that Timor-Leste was the poorest country in Southeast Asia at the time of independence with limited financial resources other than donor support and over 40 per cent of the population currently lives in poverty.[8] However, while I accept he will face economic hardship, the evidence does not suggest that the applicant has faced discriminatory employment practices or that he has been denied employment for any reason apart from the competitive employment field in the Timor-Leste economy, nor that he would in the future. I am not satisfied that any difficulties he might face in getting work, or any other difficulties he might face financially, arise from the result of discriminatory conduct or intentional acts or omissions, or from a reason mentioned in s 5J(1)(a).
[8]Bertelsmann Stiftung, 'BTI 2024 Country Report - Timor-Leste', 19 March 2024, 20240320100642
I find that the applicant does not meet the criteria in s 5J(1)(a) of the Act. He does not therefore have a well-founded fear of persecution, he is not a refugee under s 5H(1) and therefore does not meet s 36(2)(a).
As for complementary protection, the applicant does not face a real risk of facing the death penalty or being arbitrarily of his life or being tortured. I find that any economic hardship the applicant may experience not would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute cruel or inhuman treatment or punishment or degrading treatment or punishment. I find he does not face a real risk of significant harm, as defined in the Act.
Further, I consider the risk of harm to the applicant arising out of the state of the Timor-Leste economy is one faced by the population of Timor-Leste generally, rather than by the applicant personally. In such circumstances, s 36(2B)(c) has the effect that there is taken not to be a real risk the applicant will suffer significant harm.
I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Timor-Leste, there is a real risk of him suffering any harm that would amount to significant harm. Accordingly, I find that the applicant does not meet s 36(2)(aa).
CONCLUSIONS
Even when considered cumulatively, I am not satisfied that the applicant has a well-founded fear of persecution, or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed to Timor-Leste, that there is a real risk he will suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Jessica McLeod
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 1382

19 April 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction